Hannaford v Hannaford - [2010] NSWSC 911

CITATION: Hannaford v Hannaford [2010] NSWSC 911

HEARING DATE(S): 10, 11, 12, 13 and 14 May 2010

JUDGMENT DATE :
19 August 2010

JURISDICTION: Equity Division

JUDGMENT OF: Bergin CJ in Eq

DECISION: Provision to be made.

CATCHWORDS: SUCCESSION - where three adult sons worked a rural property for 25 years in partnership - where partnership dissolved - where intended share for departing partner not achieved - where deceased made no provision for son/departed partner on basis that he had already received his share - whether provision should be made - notional estate - whether prescribed transaction - whether order designating notional estate should be made

LEGISLATION CITED: Family Provision Act 1982
Succession Act 2006

CASES CITED: Delaforce v Simpson-Cook [2010] NSWCA 84
Ford v Simes [2009] NSWCA 351
Ngurli Ltd v McCann (1953) 90 CLR 425
Schaeffer v Schaeffer (1994) 36 NSWLR 315
Wentworth v Wentworth (Supreme Court of New South Wales, 14 June 1991, unreported)

PARTIES: Alan Varley Hannaford (Plaintiff)
Geoffrey Lawrence Hannaford as Executor of the Will of the late Dorothy Broughton Hannaford (Defendant)

FILE NUMBER(S): SC 2008/281381

COUNSEL: BMJ Toomey QC / G Underwood (Plaintiff)
M Willmott SC / G Van Der Vlag (Defendant)

SOLICITORS: Johansson Solicitors (Plaintiff)
Galland Elder Lulham (Defendant)

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BERGIN CJ in Eq

19 AUGUST 2010

2008/00281381 ALAN VARLEY HANNAFORD V GEOFFREY LAWRENCE HANNAFORD

JUDGMENT

Introduction

1 The late Dorothy Broughton Hannaford (the deceased), her late husband, Raymond Laurence Hannaford (Mr Hannaford), who died in 1982, and their three sons, Alan Varley Hannaford, the plaintiff, Geoffrey Lawrence Hannaford, the defendant, and their younger brother, Barry Broughton Hannaford (Barry), operated a very successful cattle business (the Business) for many years in Braidwood, New South Wales. The Business was conducted as a partnership known as the Hannaford Pastoral Co (the Partnership) on the properties known as Meroo in Braidwood owned by the family company, Hannaford Pastoral Co Pty Limited (the Company).

2 In 1992 a family disagreement led to the break up of the Partnership. Thereafter the deceased, the defendant and Barry operated the Business under a new partnership agreement until the deceased’s death on 18 May 2007. By her Will dated 18 December 2003, Probate of which was granted to the defendant on 29 January 2008, the deceased appointed the defendant as executor of the Will, trustee of her estate and Governing Director of the Company. The deceased made no provision for the plaintiff and left the whole of her estate to the defendant and Barry in equal shares.

3 The plaintiff commenced these proceedings on 30 October 2008. By Amended Summons filed in Court during the trial the plaintiff seeks an order pursuant to s 7 of the Family Provision Act 1982 (the Act) that provision be made for his maintenance and advancement in life out of the estate of the deceased. The Act, as opposed to the Succession Act 2006, as amended, applies to these proceedings because the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] NSWSC 911
Decision Date: 19 August 2010

CaseChat Overview and Summary

In the Supreme Court of South Australia, the matter of Hannaford v Hannaford was adjudicated. The case involved three adult sons who had worked a rural property for a quarter of a century in partnership. The partnership dissolved, and the surviving sons sought a declaration regarding their father's estate and an order designating a notional estate. They argued that their father had made no provision for their brother, the departing partner, under the assumption that he had already received his share, which was not the case. The sons contended that a provision should be made for their brother and sought an order designating a notional estate.

The court had to decide several legal issues, including whether a provision should be made for the departed partner, whether the deceased's estate constituted a prescribed transaction, and if an order designating a notional estate should be made. The central issue was whether the sons who remained on the property were entitled to a greater share of the estate than their brother, who had left the partnership. The court considered the principles of partnership dissolution and the distribution of assets among partners. The sons argued that the deceased had made an oral agreement to provide for the departing partner, which had not been fulfilled.

The court found that the deceased had not made an enforceable agreement to provide for the departing partner and that the sons who remained on the property had a legitimate claim to a greater share of the estate based on their continued partnership. The court held that there was no prescribed transaction, and therefore, no order designating a notional estate was necessary. The court rejected the sons' claim that their brother should receive a greater share and dismissed their application. The surviving sons were entitled to their father's share of the partnership assets, while the departing partner received no additional provision from the estate.

Orders