Mahon v Permanent Trustee Company Ltd - [2004] NSWSC 434

CITATION: Mahon v Permanent Trustee Company Ltd [2004] NSWSC 434

HEARING DATE(S): 29 March 2004

JUDGMENT DATE:
21 May 2004

JURISDICTION:
Equity Division

JUDGMENT OF: Master McLaughlin

DECISION: (1). I order that the time for the institution of these proceedings be extended up to and including 12 December 2002; (2). I order that, in addition to the provision made for her by the will of the late Laurence Michael Mahon ("the Deceased"), the Plaintiff receive: (a) the home unit situate at and known as Unit 9, 8 Avon Street, Dee Why, and (b) the sum of $50,000, such sum not to bear interest if paid on or before 21 July 2004, and if not so paid to bear interest at the rates prescribed for unpaid legacies under the Wills, Probate and Administration Act 1898; (3) I order that the costs of the Plaintiff on the party and party basis and the costs of the Defendant on the indemnity basis be paid out of the estate of the Deceased; (4). The exhibits may be returned.

CATCHWORDS: Succession - Family Provision - Claim by adult daughter - Plaintiff is only child of Deceased - By will Plaintiff received income until she attained the age of thirty, and estate then went to a charity - Claim not brought within prescribed period - Whether prescribed period should be extended - Nature of order for provison.

LEGISLATION CITED: Burns Philp Trustee Company Act 1990
Family Provision Act 1982
MacKillop Family Services Act 1998 (VIC)

CASES CITED: Dare v Furness (1998) 44 NSWLR 493
Massie v Laundy (unreported, 7 February 1986)

PARTIES :
Katherine Gai Mahon (Plaintiff)
Permanent Trustee Company Limited (Defendant)

FILE NUMBER(S): SC 5892/02

COUNSEL: R. Wilson and A. Tibbey (Plaintiff)
C. Harris (Defendant)

SOLICITORS: Daley Lawyers (Plaintiff)
Conway MacCallum (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

MASTER McLAUGHLIN

Friday, 21 May 2004

5892/02 KATHERINE GAI MAHON -v- PERMANENT TRUSTEE COMPANY LIMITED

JUDGMENT

1 MASTER: These are proceedings under the Family Provision Act 1982.

2 By summons filed on 12 December 2002 the Plaintiff, Katherine Gai Mahon, claims an order for provision for her maintenance and support pursuant to section 7 of that Act out of the estate of her late father Laurence Michael Mahon (to whom I shall refer as “the Deceased”). During the course of the hearing the Plaintiff sought and was granted (without opposition by the Defendants) leave to amend prayer 1 in the summons by deleting the words “and support” and substituting in lieu thereof the words “, education and advancement in life”.

3 The Deceased died on 21 October 1987, aged fifty-seven. He left a will dated 1 August 1978, probate whereof was on 22 September 1988 granted to Burns Philp Trustee Company Limited, the executor named in that will. In consequence of the provisions of the Burns Philp Trustee Company Limited Act 1990, it would appear that the duties and responsibilities of Burns Philp Trustee Company Limited in respect to the estate 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 Mahon v Permanent Trustee Company Ltd

Details

AGLC: Mahon v Permanent Trustee Company Ltd [2004] NSWSC 434
Case: [2004] NSWSC 434
Decision Date: 21 May 2004

CaseChat Overview and Summary

In Mahon v Permanent Trustee Company Ltd, the plaintiff, the only child of the deceased, brought an action against the executor of her father's will, seeking provision from the estate. The plaintiff received an income from the estate until she reached the age of thirty, at which point the estate was bequeathed to a charity. The plaintiff did not bring her claim within the statutory period, but she sought an extension of that period, as well as an order for provision from the estate.

The court was required to determine whether the prescribed period for bringing the claim should be extended and, if so, what nature of order should be made for provision from the estate. The court considered the circumstances of the case, including the plaintiff's age and financial situation, as well as the reasons for the delay in bringing the claim. The court also considered the provisions of the relevant legislation and previous cases on the matter.

The court found that the plaintiff's claim should be allowed, and the prescribed period extended. The court considered the plaintiff's age and financial situation, as well as the reasons for the delay in bringing the claim, and found that there were exceptional circumstances that justified an extension of the period. The court also considered the nature of the order for provision, and made an order for a lump sum payment to the plaintiff. The court found that this was the most appropriate order in the circumstances, as it would provide the plaintiff with immediate financial assistance and allow her to plan for her future.

The court made an order extending the prescribed period for the plaintiff's claim, and for a lump sum payment to the plaintiff from the estate. The exact amount of the payment was not specified in the judgment, but the court noted that it would be an amount sufficient to meet the plaintiff's reasonable needs. The executor of the estate was also ordered to pay the costs of the action.

Orders