Jalife v McIntyre - [2020] NSWSC 799

Supreme Court

New South Wales

Medium Neutral Citation: Jalife v McIntyre [2020] NSWSC 799
Hearing dates: On the papers
Date of orders: 26 June 2020
Decision date: 26 June 2020
Jurisdiction: Common Law
Before: Davies J
Decision:
1. Exhibit SE3 to the affidavit of Sera Elmasri sworn 15 May 2020, being the confidential advice of Michael Meek SC, is to be placed in a sealed envelope and marked “Confidential. Not to be opened without the leave of a judge of the Court”.
2. Order that Noah McIntyre and Grayson McIntyre be added to the proceedings as the Third Defendant and the Fourth Defendant respectively. Dispense with any further requirements of the Rules in that regard.
3. Note that each of the first and second defendants hereby releases her and his rights respectively to make a claim for provision out of the estate and notional estate of the plaintiff in the event that the plaintiff should become a deceased person.
4. Note that each of the third and fourth defendants, by their tutor, Sera Elmasri, hereby releases his rights, respectively, to make a claim for provision out of the estate and notional estate of the plaintiff in the event that the plaintiff should become a deceased person.
5. Grant to each of the third and fourth defendants, who are minors, pursuant to s 26 of the Minors (Property and Contracts) Act 1970 (NSW), capacity to bind himself to the orders in these proceedings, including his respective releases referred to.
6. Approve the settlement contained in the Deed of Settlement and Release dated 24 February 2020 pursuant to s 76 of the Civil Procedure Act 2005 (NSW).
7. Order that the release by each of the defendants of her and his rights respectively, to apply for a family provision order out of the whole, or any part, of the estate or notional estate of the plaintiff, in the event that the plaintiff should become a deceased person, be approved pursuant to s 95 of the Succession Act 2006 (NSW).

Catchwords:
SUCCESSION - family provision - approval of release under s 95 Succession Act 2006 - where plaintiff was the owner of property and defendants and their children (both minors) moved to property to care for plaintiff - defendants were daughter and son-in law of plaintiff - where relationship has broken down and plaintiff now seeks possession of property – cross-claim by defendants for constructive trust - settlement of proceedings at mediation – where settlement involves selling property, distributing balance between the plaintiff and defendants, and paying grandchildren a portion of the estate upon plaintiffs death – where defendants and grandchildren seek approval of release of rights – whether release should be approved by Court – whether agreement was advantageous, prudent and fair and reasonable for the defendants

Legislation Cited:
Civil Procedure Act 2005 (NSW) s 76
Minors (Property and Contracts) Act 1970 (NSW) s 26
Succession Act 2006 (NSW) ss57, 59 and 95
Uniform Civil Procedure Rules 2005 (NSW) r 6.24

Cases…

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 Jalife v McIntyre

Details

AGLC: Jalife v McIntyre [2020] NSWSC 799
Case: [2020] NSWSC 799
Decision Date: 26 June 2020

CaseChat Overview and Summary

The case of Jalife v McIntyre involved a dispute regarding family provision claims under the Succession Act 2006. The plaintiff, Jalife, was the owner of a property and sought possession of the property from the defendants, McIntyre and their children, who had previously moved in to care for Jalife. The defendants were Jalife’s daughter and son-in-law, and they were accompanied by their children, who were minors at the time. The relationship between Jalife and the defendants deteriorated, leading Jalife to seek possession of the property. The defendants filed a cross-claim for a constructive trust.

The legal issues the court needed to address were whether the settlement reached in mediation should be approved by the court, and whether the settlement was advantageous, prudent, and fair and reasonable for the defendants. The settlement involved selling the property, distributing the balance between the plaintiff and defendants, and paying a portion of the estate to the grandchildren upon Jalife’s death.

The court found that the settlement was fair and reasonable. It was noted that the defendants and their children had moved into the property to care for Jalife, and their relationship had subsequently broken down. The court considered the contributions made by the defendants and their children to the property and the overall estate. It was concluded that the settlement reflected a fair distribution of the estate, taking into account the contributions made and the family dynamics involved. The court approved the release of rights as part of the settlement, finding it to be advantageous, prudent, and fair and reasonable for the defendants. The court ordered that the property be sold, the proceeds distributed according to the settlement agreement, and a portion of the estate paid to the grandchildren upon Jalife’s death.

Orders