McCarthy v Tye - [2017] NSWCA 284

Court of Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: McCarthy v Tye [2017] NSWCA 284
Hearing dates: 24 October 2017
Decision date: 06 November 2017
Before: Basten JA; Macfarlan JA; Sackville AJA
Decision:
1.   Extend the time for the filing of a notice of appeal until 6 December 2016.

2.   Dismiss the appeal.
3.   The appellant to pay the respondent’s costs.
Catchwords: SUCCESSION – family provision – appellant claimed to be de facto partner of the deceased – primary judge rejected claim but found appellant was an “eligible person” under s 57(1) of the Succession Act 2006 (NSW) as he had been in a “close personal relationship with the deceased” – primary Judge awarded the appellant $85,000 out of estate valued at about $900,000 – whether any error in primary Judge’s findings of fact or evaluative judgments
Legislation Cited: Interpretation Act 1987 (NSW), s 21C
Property (Relationships) Act 1984 (NSW), ss 4, 5, 44
Succession Act 2006 (NSW), ss 57, 59, 60
Supreme Court Act 1970 (NSW), s 101
Cases Cited: Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320
Durham v Durham (2011) 80 NSWLR 335; [2011] NSWCA 62
House v The King (1936) 55 CLR 499; [1936] HCA 40
McCarthy v Tye [2015] NSWSC 1947
Pawlowska v Zajglic [2011] NSWCA 118
Category: Principal judgment
Parties: Peter Raymond McCarthy (Appellant)
Geoffrey Norman Tye (Respondent)
Representation:
Counsel:
In person (Appellant)
Mr M K Meek SC / Mr A Djurdjevic (Respondent)
Solicitors:
N/A
Stacks Law Firm Forster (Respondent)

File Number(s): 2016/10683
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity Division

Citation:

[2015] NSWSC 1947

Date of Decision:

18 December 2015

Before:

Young AJ

File Number(s):

2014/279135

Judgment

THE COURT: The appellant seeks an extension of time in which to file an appeal against a decision of a Judge of the Equity Division (Young AJA) on the appellant’s family provision claim under the Succession Act 2006 (NSW) (Succession Act). The primary Judge ordered that the appellant receive a legacy of $85,000 out of the estate of the late Diane Marjorie Green (the Deceased). [1] The appellant, who has been self-represented in this Court, seeks an order providing for a greater legacy out of the estate.
1. McCarthy v Tye [2015] NSWSC 1947 (Primary Judgment).
The respondent, the executor of the Deceased’s estate, does not object to an extension of time for the filing of the appeal. However, the respondent has filed extensive submissions in opposition to the appeal and contends that the appeal should be dismissed. The respondent has not filed a cross-appeal.

Legislation

Succession Act

Section 57(1) of the Succession Act provides that “eligible persons” who may apply to the Court for a family provision order in respect of the estate of a deceased person include:

“(b)   a person with whom the deceased person was living in a de facto relationship at the time of the deceased person’s death,
…
(e)   a person:
(i)   who…

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 McCarthy v Tye

Details

AGLC: McCarthy v Tye [2017] NSWCA 284
Case: [2017] NSWCA 284
Decision Date: 06 November 2017

CaseChat Overview and Summary

The appeal concerned a claim for provision from the estate of the deceased, Mr. Tye, brought by the appellant, Ms. McCarthy. The primary judge had found that Ms. McCarthy was not the de facto partner of the deceased, but was nevertheless an "eligible person" under section 57(1) of the *Succession Act 2006* (NSW) due to having a "close personal relationship" with the deceased. The primary judge awarded Ms. McCarthy $85,000 from an estate valued at approximately $900,000. The appeal to the Court of Appeal of New South Wales questioned whether the primary judge had erred in their findings of fact or evaluative judgments.

The central legal issues before the Court of Appeal were whether the primary judge had made any errors in their factual findings or in the evaluative judgments made in determining the appellant's eligibility for provision and the quantum of that provision. Specifically, the court considered whether the primary judge had correctly assessed the nature of the relationship between the appellant and the deceased in determining eligibility, and whether the award made was appropriate in all the circumstances.

The Court of Appeal dismissed the appeal, finding no error in the primary judge's findings or judgments. The court affirmed the primary judge's conclusion that while the appellant was not a de facto partner, she did have a close personal relationship with the deceased, thus qualifying her as an eligible person. The court also found that the award of $85,000 was not demonstrably wrong or unjust. The court extended the time for the filing of the notice of appeal and ordered that the appellant pay the respondent's costs.

Orders

Orders of the court

1. Extend the time for the filing of a notice of appeal until 6 December 2016.

2. Dismiss the appeal.

3. The appellant to pay the respondent’s costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	McCarthy v Tye [2017] NSWCA 284
Hearing dates:	24 October 2017
Decision date:	06 November 2017
Before:	Basten JA; Macfarlan JA; Sackville AJA
Decision:	1. Extend the time for the filing of a notice of appeal until 6 December 2016. 2. Dismiss the appeal. 3. The appellant to pay the respondent’s costs.
Catchwords:	SUCCESSION – family provision – appellant claimed to be de facto partner of the deceased – primary judge rejected claim but found appellant was an “eligible person” under s 57(1) of the Succession Act 2006 (NSW) as he had been in a “close personal relationship with the deceased” – primary Judge awarded the appellant $85,000 out of estate valued at about $900,000 – whether any error in primary Judge’s findings of fact or evaluative judgments
Legislation Cited:	Interpretation Act 1987 (NSW), s 21C Property (Relationships) Act 1984 (NSW), ss 4, 5, 44 Succession Act 2006 (NSW), ss 57, 59, 60 Supreme Court Act 1970 (NSW), s 101
Cases Cited:	Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 Durham v Durham (2011) 80 NSWLR 335; [2011] NSWCA 62 House v The King (1936) 55 CLR 499; [1936] HCA 40 McCarthy v Tye [2015] NSWSC 1947 Pawlowska v Zajglic [2011] NSWCA 118
Category:	Principal judgment
Parties:	Peter Raymond McCarthy (Appellant) Geoffrey Norman Tye (Respondent)
Representation:	Counsel: In person (Appellant) Mr M K Meek SC / Mr A Djurdjevic (Respondent) Solicitors: N/A Stacks Law Firm Forster (Respondent)
File Number(s):	2016/10683
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity Division Citation: [2015] NSWSC 1947 Date of Decision: 18 December 2015 Before: Young AJ File Number(s): 2014/279135