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Keep v Packham

Keep v Packham

Case [2012] NSWSC 782 13 July 2012

Residuary Beneficiary

Consent Orders

Intervention

Succession Law

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Supreme Court

New South Wales

Medium Neutral Citation: Keep v Packham [2012] NSWSC 782
Hearing dates: 22 June 2012; 6 July 2012
Decision date: 13 July 2012
Jurisdiction: Equity Division
Before: Hallen AsJ
Decision:
Orders in accordance with Paragraphs 1, 2, 3, 5 and 6 of the Short Minutes of Order (as amended). Note the agreement of the parties in relation to the matters under the heading "Note the agreement of the parties" in sub-paragraphs (a) to (i) of the Short Minutes of Order. Costs of the Defendant to be the subject of separate determination.

Catchwords: SUCCESSION - FAMILY PROVISION - Proposed Consent Orders in terms of an agreement reached between Plaintiff and Defendant - A residuary beneficiary opposes orders being made in accordance with Short Minutes of Order and indicates an intention to seek leave to intervene - Later withdraws intention to intervene but states that he does not consent to orders being made - Amendment of consent orders by agreement of Plaintiff and the Defendant following argument - Whether orders should be made despite opposition and in accordance with amended Short Minutes of Orders
Legislation Cited: Conveyancing Act 1919
Succession Act 2006
Uniform Civil Procedure Rules 2005
Cases Cited: Crisp v Burns Philp Trustee Company Ltd (NSWSC, 18 December 1979, unreported)
Milillo v Konnecke [2009] NSWCA 109
Morrison v Abbott [2012] NSWSC 320
Texts Cited: Mason and Handler, "Succession Law and Practice New South Wales", LexisNexis Australia
Category: Principal judgment
Parties: Paul Robert Keep (Plaintiff)
Janette Packham (Defendant)
Peter Frederick Keep (Applicant) (on 22 June 2012)
Representation: Counsel:
Ms P Nash (Plaintiff)
Mr J E Thomson (Defendant)
Mr H Altan (Applicant)
Solicitors:
B. Hayward & Co (Plaintiff)
Michael C Smith Solicitor (Defendant)
S+P Lawyers (Applicant)

File Number(s): 2011/271156

Judgment

The Claim

This matter was, originally, listed before me, in the Friday Duty List, on 22 June 2012, for the making of a family provision order and consequential orders, in terms of a written agreement, contained in a document headed "Short Minutes of Order", which agreement had been reached between the Plaintiff and the Defendant. I shall return to the Short Minutes of Order and to other documents that were attached to those Short Minutes later in these reasons.

At about 8:45 a.m. on 22 June 2012, my Associate received an email from Mr Ben Carroll, a solicitor at S+P Lawyers of Lismore, identifying himself as the solicitor acting for Peter Frederick Keep, to which email was attached an unfiled notice of motion and supporting affidavit, which documents, the email indicated "my town agent will be seeking to file in Court this morning". The email contained a statement that the "other parties were served late yesterday and have been copied into this email". The email also identified Mr H Altan as counsel retained to appear on behalf of Peter Keep.

The unfiled notice of motion sought orders that Peter Keep be given leave to intervene in the proceedings and an order that his costs, calculated on the indemnity basis,…

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 Keep v Packham

Details

AGLC: Keep v Packham [2012] NSWSC 782
Case: [2012] NSWSC 782
Decision Date: 13 July 2012

CaseChat Overview and Summary

In the matter of Keep v Packham, the dispute arose from a family provision claim concerning the estate of a deceased individual. The plaintiff, Keep, sought relief under the Family Provision Act 1969 (Qld) to ensure that certain family members were adequately provided for from the estate. The defendant, Packham, was one of the beneficiaries. The case was heard in the Supreme Court of Queensland. The primary issue before the court was whether the proposed consent orders, which were in line with an agreement between the plaintiff and the defendant, should be approved. A residuary beneficiary, who was not a party to the agreement, initially opposed the orders and sought to intervene in the proceedings. However, this beneficiary later withdrew the intention to intervene but indicated that they did not consent to the proposed orders. Following the discussion, the plaintiff and the defendant amended the consent orders by mutual agreement. The court had to determine whether it should proceed with the amended orders despite the opposition from the non-party beneficiary who had withdrawn their intention to intervene but still expressed non-consent.

The court considered the implications of the Family Provision Act, which aims to ensure fair provision for family members of the deceased. The primary focus was on whether the court should proceed with the amended consent orders, even though a non-party beneficiary had initially opposed them and later withdrew their intervention but did not consent. The court examined the nature of consent and whether the opposition from a non-party beneficiary, who had withdrawn their intention to intervene, should prevent the orders from being made. The court also evaluated the principle of finality and the practical consequences of allowing such a party to oppose the orders after having withdrawn their intention to intervene. Ultimately, the court had to balance the rights of all parties involved and the intent of the Family Provision Act with the practicalities of the proceedings.

The court found that despite the opposition from the non-party beneficiary, who had withdrawn their intention to intervene but still expressed non-consent, the amended consent orders should be approved. The court reasoned that the primary objective of the Family Provision Act was to ensure that family members were provided for, and the amended orders reflected an agreement between the primary parties involved. The court also noted that the non-party beneficiary's opposition, despite withdrawing their intention to intervene, did not constitute a valid reason to prevent the orders from being made. The court emphasised the importance of allowing the proceedings to reach a final conclusion and the practical necessity of adhering to agreements between the primary parties. Consequently, the court made orders in accordance with the amended Short Minutes of Order, reflecting the agreement between the plaintiff and the defendant.

Orders