Harris v Carter

Case [2020] NSWSC 196


Supreme Court


New South Wales

Medium Neutral Citation: Harris v Carter [2020] NSWSC 196
Hearing dates: 12 December 2019
Date of orders: 12 December 2019
Decision date: 06 March 2020
Jurisdiction:Equity
Before: Hallen J
Decision:

The Court:

 

(1) Orders that the Summons be dismissed.

 (2) Orders the Plaintiff to pay the Defendants’ costs up to 20 June 2019 calculated on the ordinary basis, and from 21 June 2019, to pay the Defendants’ costs calculated on the indemnity basis.
Catchwords:

SUCCESSION – Family provision – Claim by minor child for provision from the deceased’s estate under Succession Act 2006 (NSW), Ch 3 – The Defendants are the parents of the deceased and the executors to whom Probate was granted – Obligation or responsibility of a parent to a child – Relevance of "bare paternity" – Maintenance provision made in the deceased’s Will for the Plaintiff – Other significant provision received by the Plaintiff as a result of deceased’s membership of a superannuation fund and as a member of the Australian Defence Force – Whether provision made in the Will of the deceased is adequate and proper

COSTS – Indemnity costs – Offer of compromise –Where defendant obtains an order or judgment on the claim no less favourable than the terms of the offer – Where offer of compromise complies with UCPR – Whether Court should otherwise order – Whether Plaintiff’s tutor should be held personally liable to pay costs
Legislation Cited: Family Provision Act 1982 (NSW)
Inheritance (Provision for Family and Dependants) Act 1975 (UK) c 63
Legal Profession Uniform Law (NSW), s 181
Military Superannuation and Benefits Act 1991 (Cth)
Probate and Administration Act 1898 (NSW), s 86
Succession Act 2006 (NSW), ss 3, 57, 58, 59, 60, 61, 63, 72, 79, 84, 99, Ch 3
Trustee Act 1925 (NSW), ss 43, 44
Uniform Civil Procedure Rules 2005 (NSW), rr 20.26, 36.17, 42.1, 42.13, 42.13A, 42.14, 42.15A, 42.20
Cases Cited: Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308
Ashton v Pratt (No 2) [2015] NSWCA 134
Bates v Cooke (2015) 14 ASTLR 221; [2015] NSWCA 278
Bates v Cooke (No 2) [2014] NSWSC 1322
Bkassini v Sarkis [2017] NSWSC 1487
Boettcher v Driscoll (2014) 119 SASR 523; [2014] SASC 86
Borebor v Keane (2013) 11 ASTLR 96; [2013] VSC 35
Bosch v Perpetual Trustee Co Ltd [1938] AC 463
Bowditch v NSW Trustee and Guardian [2012] NSWSC 275
Bowyer v Wood (2007) 99 SASR 190; [2007] SASC 327
Burke v Burke (No 2) (2015) 13 ASTLR 313; [2015] NSWCA 195
Carey v Robson (No 2) [2009] NSWSC 1199
Chan v Chan (2016) 15 ASTLR 317; [2016] NSWCA 222
Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392
de Angelis v de Angelis [2003] VSC 432
Devereaux-Warnes v Hall (No 3) (2007) 35 WAR 127; [2007] WASCA 235
Diver v Neal (2009) 2 ASTLR 89; [2009] NSWCA 54
Estate Hemmes; Cameron v Mead [2018] NSWSC 85
Farrell v Royal Kings Park Tennis…

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AGLC
Harris v Carter [2020] NSWSC 196
Case
[2020] NSWSC 196
Decision Date

CaseChat Overview and Summary

In the case of Harris v Carter, the minor plaintiff, Harris, sought provision from the estate of her deceased father under the Succession Act 2006 (NSW). The defendants, Carter and Carter, are the deceased's parents and the executors of his estate. The deceased had made a maintenance provision for the plaintiff in his will, but Harris argued that this was insufficient. Additionally, Harris received significant provisions from the deceased's superannuation fund and Australian Defence Force membership. The central dispute was whether the provisions made in the deceased's will were adequate and proper, given the other financial benefits Harris received.

The court was required to determine whether the provisions made in the deceased's will were adequate and proper, considering the other financial benefits Harris received. The court also had to consider whether the defendants were liable for indemnity costs and whether the plaintiff's tutor should be held personally liable to pay costs. The court's reasoning involved assessing the deceased's will against the other benefits Harris received, and examining the defendants' offer of compromise to determine if it complied with the Uniform Civil Procedure Rules.

The court found that the provisions made in the deceased's will were adequate and proper, taking into account the other financial benefits Harris received. The court held that the defendants were not liable for indemnity costs as they obtained an order or judgment on the claim no less favourable than the terms of the offer. However, the court ordered that the plaintiff's tutor be held personally liable to pay costs, as the offer of compromise did not comply with the Uniform Civil Procedure Rules.

The court's final orders were that the defendants were not liable for indemnity costs, and the plaintiff's tutor was held personally liable to pay costs. The court found that the provisions made in the deceased's will were adequate and proper, considering the other financial benefits Harris received.

Orders

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Background

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Evidence

Evidence Before The Court

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Decision

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Ratio Decidendi

Legal Principle Established

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