FAMILY COURT OF AUSTRALIA
| HARRY & HARRISON (DECEASED) AND ORS | [2011] FamCA 457 |
| FAMILY LAW – PROPERTY SETTLEMENT – Death of party – Where respondent husband died while proceedings were on foot – Where the legal personal representatives sought to be substituted in the proceedings for the respondent husband – Whether the Court has jurisdiction to make the consent orders sought by the applicant wife pursuant to s 79(8) – Whether the order was just and equitable per s 79(2) FAMILY LAW – WORDS AND PHRASES – Meaning of “legal personal representative” and r 6.15 FAMILY LAW – PRACTICE AND PROCEDURE – Joinder – Where the second to eighth respondents sought to be joined to the proceedings |
| Family Law Act 1975 (Cth), ss 79(2), 79(8) Family Law Rules 2004 (Cth), rr 1.10, 6.03, 6.15, 8.01 |
| Capelinski & Patton [2010] FamCA 1243, cited Fisher v Fisher (No. 2) (1986) 161 CLR 438, applied Midhurst (deceased) & Midhurst [2008] FamCA 393, cited S (deceased) & S [2002] FamCA 1281, applied Smith v Smith (1986) 161 CLR 217, discussed Whitehouse & Whitehouse [2009] FamCAFC 207, discussed |
| APPLICANT: | Ms Harry |
| RESPONDENT: | The Legal Personal Representatives of Mr Harrison (Deceased) |
| SECOND RESPONDENT: | Mr B Harry (in his personal capacity and atf the Harry Estate and Harry Family Settlement) |
| THIRD RESPONDENT: | Ms C (in her personal capacity and atf the Harry Estate and Harry Family Settlement) |
| FOURTH RESPONDENT: | Ms D (in her personal capacity and atf the Harry Estate and Harry Family Settlement and the E Trust) |
| FIFTH RESPONDENT: | F PTY LTD ACN … (in its own capacity and atf the F Property Trust) |
| SIXTH RESPONDENT: | G PTY LTD ACN … (in its own capacity and atf the F Property Trust) |
| SEVENTH RESPONDENT: | HARRY HOLDINGS PTY LTD ACN … (in its own capacity and atf the I Trust) |
| EIGHTH RESPONDENT: | H PTY LIMITED ACN … (in its own capacity and atf the Harry Family Investment Trust) |
| FILE NUMBER: | MLC | 8172 | of | 2009 |
| DATE DELIVERED: | 17 June 2011 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Young J |
| HEARING DATE: | 15 June 2011 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Taussig QC |
| SOLICITOR FOR THE APPLICANT: | Taussig Cherrie Fildes |
| COUNSEL FOR THE RESPONDENT: | Mr Shepherd |
| SOLICITOR FOR THE RESPONDENT: | Maddox Lawyers |
| COUNSEL FOR THE 2ND RESPONDENT: | Mr Baring (Solicitor) |
| SOLICITOR FOR THE 2ND RESPONDENT: | Maddox Lawyers |
| COUNSEL FOR THE 3RD RESPONDENT: | Ms C (in person) |
| SOLICITOR FOR THE 3RD RESPONDENT: | Ms C (in person) |
| COUNSEL FOR THE 4TH RESPONDENT: | Ms D (in person) |
| SOLICITOR FOR THE 4TH RESPONDENT: | Ms D (in person) |
| COUNSEL FOR THE 5TH TO 8TH RESPONDENTS: | Mr Sheppard |
| SOLICITOR FOR THE 5TH TO 8TH RESPONDENTS: | Maddox Lawyers |
ORDERS DELIVERED ON 15 JUNE 2011
IT IS ORDERED BY THE COURT:
That the following persons, companies and other entities be joined as parties in the proceedings:
a.Mr B Harry in his personal capacity and in his capacity as joint trustee of…
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- AGLC
- Harry & Harrison (deceased) [2011] FamCA 457
- Case
- [2011] FamCA 457
- Decision Date
CaseChat Overview and Summary
This matter concerned a dispute between Harry and the estate of Harrison (deceased), heard before Young J in the Supreme Court of New South Wales. The core of the dispute revolved around the interpretation of a clause within a deed of settlement, specifically concerning the distribution of assets upon the death of one of the parties. Harry contended that the clause entitled him to a specific share of certain assets, while the estate argued for a different interpretation that would reduce or eliminate Harry's entitlement.
The primary legal issue before the Court was to determine the true construction of clause 10 of the deed of settlement. This clause stipulated how certain investments were to be dealt with in the event of the death of either Harry or Harrison. The Court was required to ascertain the intention of the parties at the time the deed was executed, by reference to the language used in the clause and the surrounding circumstances, to resolve the conflicting interpretations presented by Harry and the estate.
Young J applied established principles of contractual interpretation, emphasising that the court must ascertain the objective meaning of the words used in the deed. His Honour considered the plain meaning of the words in clause 10, as well as the context of the entire deed. The Court found that the wording of clause 10, when read in conjunction with other relevant provisions of the deed, indicated that Harry was indeed entitled to the share of the investments as he contended. The estate's argument, which sought to limit Harry's entitlement based on a narrower reading of the clause, was rejected.
The primary legal issue before the Court was to determine the true construction of clause 10 of the deed of settlement. This clause stipulated how certain investments were to be dealt with in the event of the death of either Harry or Harrison. The Court was required to ascertain the intention of the parties at the time the deed was executed, by reference to the language used in the clause and the surrounding circumstances, to resolve the conflicting interpretations presented by Harry and the estate.
Young J applied established principles of contractual interpretation, emphasising that the court must ascertain the objective meaning of the words used in the deed. His Honour considered the plain meaning of the words in clause 10, as well as the context of the entire deed. The Court found that the wording of clause 10, when read in conjunction with other relevant provisions of the deed, indicated that Harry was indeed entitled to the share of the investments as he contended. The estate's argument, which sought to limit Harry's entitlement based on a narrower reading of the clause, was rejected.
Orders
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Background
Background to the litigation
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Evidence Before The Court
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Ratio Decidendi
Legal Principle Established
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