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Mallitt v Gow

Mallitt v Gow

Case [2022] NSWSC 1012 28 July 2022

Family Provision

Succession Act 2006 (NSW)

Dependency

Succession Law

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Supreme Court

New South Wales

Medium Neutral Citation: Mallitt v Gow [2022] NSWSC 1012
Hearing dates: 12 July 2022
Date of orders: 28 July 2022
Decision date: 28 July 2022
Jurisdiction: Equity
Before: Hallen J
Decision:
See paragraph [256]

Catchwords:
SUCCESSION — Family provision — Claim by person who was, at any particular time, wholly or partly dependent on the deceased and was, at that particular time, or at any other time, a member of the household of which the deceased was a member, for provision from the deceased’s estate under Succession Act 2006 (NSW), Ch 3 – No dispute as to eligibility – Then, question whether, having regard to all the circumstances of the case (past or present), there are factors which warrant the making of the application – Dispute about whether there are any such factors – Whether order under the Act should be made and if so, nature and amount of the provision – Order for provision made

Legislation Cited:
Civil Procedure Act 2006 (NSW) s 98(4)(c)
Family Provision Act 1982 (NSW)
Probate and Administration Act 1898 (NSW) ss 84A, 86
Property (Relationships) Act 1984 (NSW) s 3
Succession Act 2006 (NSW) ss 3, 55, 57-59, 60-63, 65-66, 72
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Alexander v Jansson [2010] NSWCA 176
Andrew v Andrew [2012] NSWCA 308
Askew v Askew [2015] NSWSC 192
Barns v Barns (2003) 214 CLR 169; [2003] HCA 9
Bartlett v Coomber [2008] NSWCA 100
Bassett v Bassett [2021] NSWCA 320
Boettcher v Driscoll (2014) 119 SASR 523; [2014] SASC 86
Bosch v Perpetual Trustee Co Ltd [1938] AC 463
Bouttell v Rapisarda [2014] NSWSC 1192
Butler v Morris; Butler (bht NSW Trustee & Guardian) v Morris [2012] NSWSC 748
Carey v Robson (No 2) [2009] NSWSC 1199
Chan v Chan (2016) 15 ASTLR 317; [2016] NSWCA 222
Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392
Cooper v Dungan (1976) 50 ALJR 539
de Angelis v de Angelis [2003] VSC 432
Diver v Neal [2009] NSWCA 54
Foley v Ellis [2008] NSWCA 288
Forsyth v Sinclair (No 2) (2010) 28 VR 635; [2010] VSCA 195
Freeman v Jaques [2006] 1 Qd R 318; [2005] QCA 423
Gardiner v Gardiner (Supreme Court (NSW), Santow J, 28 May 1998, unrep)
Goodman v Windeyer (1980) 144 CLR 490; [1980] HCA 31
Gorton v Parks (1989) 17 NSWLR 1
Graham v Vukic [2020] NSWSC 1801
Graziani v Graziani (NSWSC, 20 February 1987, unrep),
Grey v Harrison [1997] 2 VR 359
Harkness v Harkness (No 2) [2012] NSWSC 35
Ilott v The Blue Cross [2017] 2 WLR 979; [2017] UKSC 17
In the Estate of Puckridge, Deceased (1978) 20 SASR 72
Kay v Archbold [2008] NSWSC 254
Koellner v Spicer [2019] NSWSC 1571
Lewis v Warner [2016] 3 WLR 1545; [2016] EWHC 1787
Lodin v Lodin [2018] HCASL 84.
Lodin v Lodin (2017) 16 ASTLR 576; [2017] NSWCA 327
Manuel v Lane [2013] NSWCA 61
Mayfield…

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 Mallitt v Gow

Details

AGLC: Mallitt v Gow [2022] NSWSC 1012
Case: [2022] NSWSC 1012
Decision Date: 28 July 2022

CaseChat Overview and Summary

The parties involved in this case were Mallitt and Gow. The dispute was about the distribution of the deceased's estate under the Succession Act 2006 (NSW). The case was heard by the New South Wales Supreme Court. Mallitt sought a provision from the deceased's estate under the Family Provision Act, claiming to have been dependent on the deceased at some point in time and to have been a member of the deceased's household.

The central legal issue that the court had to decide was whether there were sufficient factors to warrant the making of the application for provision from the estate. There was no dispute about Mallitt's eligibility to make the claim under the Act. The question was whether there were any factors that warranted the making of the application. The court had to consider all the circumstances of the case, both past and present, to determine if there were any factors that warranted the making of the application. The court also had to determine the nature and amount of the provision, if an order should be made.

The court found that there were indeed factors that warranted the making of the application. The court considered the circumstances of the case and found that Mallitt had made out a case for provision. The court made an order for provision, determining the nature and amount of the provision. The court found that the deceased had provided for Mallitt during their relationship, and that Mallitt had made significant contributions to the deceased's estate. The court determined that Mallitt was entitled to a provision from the deceased's estate.

Orders