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Henry v Hancock

Henry v Hancock

Case [2016] NSWSC 71 16 February 2016

Family Provision

Unconscionable Conduct

Limitation Periods

Discretionary Provision

Succession Law

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Henry v Hancock [2016] NSWSC 71
Hearing dates: 9, 10, 11, 14 December 2015
Date of orders: 16 February 2016
Decision date: 16 February 2016
Jurisdiction: Equity - Family Provision List
Before: Brereton J
Decision:
Summons dismissed with costs

Catchwords: SUCCESSION – family provision – application by adult daughter – where claim made nearly 6 years out of time – whether time should be extended – relevant considerations – where plaintiff decides not to claim because of hope of benefit from defendant – where expectation of inheritance from defendant falsified after time expired – unconscionable conduct – held, sufficient cause for not making application within 18 months established but subsequent delay not satisfactorily explained – held, extension refused – where only available estate is notional estate – whether special circumstances established – held, special circumstances not established – whether plaintiff left with inadequate provision – where plaintiff in circumstances of financial need that was associated with failure of her company’s business – where strong competing claim of deceased’s surviving spouse – where plaintiff has received substantial benefits from deceased during lifetime and defendant – held, not left with inadequate provision and alternatively, as a matter of discretion, provision should not be made
Legislation Cited: (CTH) Corporations Act 2001, s 436A, s 439A
(NSW) Testator’s Family Maintenance and Guardianship of Infants Act 1916
(NSW) Family Provision Act 1982, s 7, s 9(2), s 9(3)(a), s 16, s 27(1)(a), s 28(5)
(NSW) Succession Act 2006, s 90
Cases Cited: Alexander v Jansson [2010] NSWCA 176
Application of O and P [2005] NSWSC 1297
Baker v The Queen [2004] HCA 45; (2004) 210 ALR 1; (2004) 78 ALJR 1483
Barker v Magee [2001] NSWSC 563
Bladwell v Davis [2004] NSWCA 170
Burke v Burke [2015] NSWCA 195
Campbell v Chabert-McKay [2010] NSWSC 859
Cetojevic v Cetojevic [2006] NSWSC 431
Charnock v Handley [2011] NSWSC 1408
Dare v Furness (1998) 44 NSWLR 493
De Winter v Johnstone (NSWCA, 23 August 1995 unreported); BC9505226; [1995] NSWCA 120
Director-General Department of Community Services v The Adoptive Parents [2005] NSWCA 385
Diver v Neal [2009] NSWCA 54
Fancett v Ware (NSWSC, Needham J, 3 June 1986 unreported)
Foley v Foley [2008] NSWSC 233
Hastings v Hastings [2010] NSWCA 197
Hughes v National Trustees Executors & Agency Co of Australasia Ltd (1979) 143 CLR 134
John v John [2010] NSWSC 937
Kohari v Snow [2013] NSWSC 452
Lewis v Lewis [2001] NSWSC 321
Massie v Laundy (NSWSC, Wales, Young J, 7 February 1986 unreported)
McGrath v Eves [2005] NSWSC 1006
Newman v Newman [2015] NSWSC 1207
Pitkin v Henderson [2001] NSWSC 207
Re Anderson (dec’d) (1975) 11 SASR 276
Re Fulop Deceased (1987) 8 NSWLR 679
Re Guskett [1947] VLR 212
Salmon v Osmond [2015] NSWCA 42
Seeto v Seeto [2013] NSWSC 1232
Sikorski v Michalowski [2007] NSWSC 666
Singer v Berghouse (No 2) (1994) 181 CLR 201
Slack v Rogan; Palffy v Rogan [2013] NSWSC…

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 Henry v Hancock

Details

AGLC: Henry v Hancock [2016] NSWSC 71
Case: [2016] NSWSC 71
Decision Date: 16 February 2016

CaseChat Overview and Summary

The matter of Henry v Hancock was brought before the court by the plaintiff, an adult daughter, who sought to make an application for family provision under the Succession Act. The daughter’s application was made nearly six years after the death of her father, the deceased, and after the limitation period of 18 months had expired. The primary legal issue for the court to determine was whether sufficient cause existed to justify the extension of the time limit for the daughter’s application. A secondary issue was whether special circumstances existed to warrant the making of an order under the Act, and whether the daughter had been left with inadequate provision for her maintenance, support, and education.

The court examined the reasons for the delay in making the application, noting that the daughter had initially decided not to claim due to the hope of receiving a benefit from the defendant. However, the court found that the subsequent delay was not satisfactorily explained. The court considered the doctrine of unconscionability but concluded that, while there was sufficient cause for the initial delay, the subsequent delay was not justified. Consequently, the court refused to extend the time for the application. The court also considered the question of whether special circumstances existed to warrant an order under the Act, finding that they did not. Finally, the court assessed whether the daughter had been left with inadequate provision for her maintenance, support, and education, concluding that she had not. The court took into account the daughter’s financial need, which was associated with the failure of her company’s business, and the strong competing claim of the deceased’s surviving spouse. The court also noted that the daughter had already received substantial benefits from the deceased during his lifetime and from the defendant.

In summary, the court held that the plaintiff had not established sufficient cause for the delay in making her application, and therefore, the application for an extension of time was refused. The court also found that special circumstances were not established and that the plaintiff had not been left with inadequate provision for her maintenance, support, and education. Consequently, the court dismissed the plaintiff’s application.

Orders