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Maher v Burden

Maher v Burden

Case [2022] VSC 617 19 October 2022

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
TESTATOR FAMILY MAINTENANCE LIST

S CI 2016 01961

THOMAS CELESTINE MAHER	First Plaintiff
NOEL ANNE MAHER	Second Plaintiff
v
CHRISTINE BURDEN and DAMIEN MAHER (who are sued as the Executors of the Will of MAUREEN BROWN, deceased)	Defendants

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JUDGE:	Moore J
WHERE HELD:	Melbourne
DATE OF HEARING:	19 September 2022
DATE OF JUDGMENT:	19 October 2022
CASE MAY BE CITED AS:	Maher v Burden
MEDIUM NEUTRAL CITATION:	[2022] VSC 617

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BANKRUPTCY – Claim for further provision from a deceased estate – Action commenced by a person who subsequently became bankrupt – Proceeding stayed – s 60 of the Bankruptcy Act 1966 (Cth) – pt IV of the Administration and Probate Act 1958 – Cox v Journeaux (No 2) (1935) 52 CLR 713; Faulkner v Bluett (1981) 52 FLR 115; Daemar v Industrial Commission of New South Wales & Ors (1988) 12 NSWLR 45; Re Lofthouse [2001] FCA 25; Owens v Comlaw [2006] VSCA 151; Moss v Eaglestone [2011] NSWCA 404; Duckworth v Water Corporation [2012] WASC 30; Sheehan v Brett Young (No. 3) [2016] VSC 39; Berryman v Zurich Australia Ltd [2016] WASC 196; Muir v Angeles [2020] NSWSC 1056; Thompson v Cyati [2021] QDC 15.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	No appearance	No appearance
For the Defendants	Mr A Verspaandonk	Kathy Wilson Legal

HIS HONOUR:

Introduction

The first plaintiff, Thomas Celestine Maher, is the eldest of the eleven children of Thomas P Maher and Maureen Brown who died in 1975 and on 18 June 2014 respectively.[1] The defendants are the executors of Maureen Brown’s estate who are two of the plaintiff’s siblings.
[1]Although the second plaintiff, the wife of Thomas Celestine Maher, remains a party to the proceeding, her counsel has informed the Court that she does not press an independent claim in the proceeding. It is accordingly convenient to refer to Thomas Celestine Maher as ‘the plaintiff’.

Maureen Brown’s last will was executed on 22 September 2009 and probate was granted to the defendants on 26 November 2015. By her will, Maureen Brown made various gifts, including real property, to some of her children including the plaintiff.

On 23 May 2016, Thomas Celestine Maher issued a proceeding pursuant to Part IV of the Administration and Probate Act 1958 seeking further provision from Maureen Brown’s estate for his proper maintenance and support. The determination of that claim has been delayed, principally as a consequence of other proceedings brought against the estates of Thomas P Maher and Maureen Brown. [2]
[2]Including Maher v Maher [2019] VSCA 161 and see Maher v Kuperholz [2022] VSC 224.

The plaintiff was declared bankrupt on 16 November 2021. The issue which arises is whether, in light of his bankruptcy, s 60(2) of the Bankruptcy Act 1966 (Cth) (the Bankruptcy Act) operates to stay the plaintiff’s Part IV claim.

In order to resolve this controversy, on…

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 Maher v Burden

Details

AGLC: Maher v Burden [2022] VSC 617
Case: [2022] VSC 617
Decision Date: 19 October 2022

CaseChat Overview and Summary

In the case of Maher v Burden, the dispute involved a claim for further provision from a deceased estate. The plaintiff, Maher, sought additional funds from the estate of the deceased, Burden. The proceedings were commenced by Maher, who subsequently became bankrupt. This case came before the Supreme Court of Victoria, which was tasked with deciding whether to stay the proceedings under section 60 of the Bankruptcy Act 1966 (Cth), and whether to allow the claim under the provisions of Part IV of the Administration and Probate Act 1958.

The primary legal issue before the court was whether the claim for further provision from the deceased estate should proceed while the plaintiff was bankrupt. The court had to consider the interplay between section 60 of the Bankruptcy Act, which provides for the stay of proceedings during bankruptcy, and the provisions of the Administration and Probate Act, which govern claims against deceased estates. The court also needed to determine if the exception to the stay under section 60(2)(c) of the Bankruptcy Act applied to the circumstances of this case.

The court examined the relevant statutory provisions and previous case law to determine the appropriate course of action. It found that the provisions of the Administration and Probate Act did not override the stay imposed by section 60 of the Bankruptcy Act. The court concluded that the stay should remain in effect, as the claim for further provision from the deceased estate was not an exception under section 60(2)(c) of the Bankruptcy Act. Consequently, the proceedings were stayed, and the claim for further provision was not allowed to proceed during the bankruptcy of the plaintiff.

The court ordered that the proceedings be stayed in accordance with section 60 of the Bankruptcy Act 1966 (Cth). The claim for further provision from the deceased estate by Maher was dismissed as it could not proceed while Maher was under bankruptcy.

Orders