Harry & Harrison (deceased) - [2011] FamCA 457

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

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 2^ND RESPONDENT:

Mr Baring (Solicitor)

SOLICITOR FOR THE 2^ND RESPONDENT:

Maddox Lawyers

COUNSEL FOR THE 3^RD RESPONDENT:

Ms C (in person)

SOLICITOR FOR THE 3^RD RESPONDENT:

Ms C (in person)

COUNSEL FOR THE 4^TH RESPONDENT:

Ms D (in person)

SOLICITOR FOR THE 4^TH RESPONDENT:

Ms D (in person)

COUNSEL FOR THE 5^TH TO 8^THRESPONDENTS:

Mr Sheppard

SOLICITOR FOR THE 5^TH TO 8^TH 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…

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.

Continue reading Harry & Harrison (deceased)

Details

AGLC: Harry & Harrison (deceased) [2011] FamCA 457
Case: [2011] FamCA 457
Decision Date: 17 June 2011

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.

Orders