McCarthy v Tye - [2015] NSWSC 1947

Supreme Court

New South Wales

Medium Neutral Citation: McCarthy v Tye [2015] NSWSC 1947
Hearing dates: 7 and 8 December 2015
Date of orders: 18 December 2015
Decision date: 18 December 2015
Jurisdiction: Equity
Before: Young AJA
Decision:
1.    Order that the Plaintiff receive a legacy of $85,000, not to carry interest if paid within one month of the sale of the testatrix’s home.

2.    Order that the costs of the Plaintiff, which are capped at $85,000 in accordance with usual policy that costs do not exceed the amount of the legacy, should be paid out of the estate
3.    Order that the executor’s costs be paid out of the estate.
Catchwords: FAMILY PROVISION – Claim made by boarder living in the same property as the deceased – Whether eligible person under s 57(1)(b), (e) and (f) – Whether there are factors warranting the making of the application – Quantum of provision to be made for Plaintiff
Legislation Cited: Family Provision Act 1982 (NSW)
Succession Act 2006 (NSW)
Cases Cited: Andrew v Andrew [2012] NSWCA 308; (2012) 81 NSWLR 656
Barlevy v Nadolski [2011] NSWSC 129
Crabtree v Crabtree [1964] NSWR 1178; (1963) 5 FLR 307
Dridi v Fillmore [2001] NSWSC 319
Light v Anderson [1992] DFC 95-120
Markulin v Drew [1993] DFC 95-140
Miller v Ryan; Payne v Ryan [2015] NSWSC 1713
Moloney v Goodwin (Supreme Court (NSW), Needham J, 8 January 1989, unrep)
Oakes v Oakes [2014] NSWSC 1312
Re Fulop (decd) (1987) 8 NSWLR 679
Re Paskin’s Will Trusts [1948] 2 All ER 156
Simonis v Perpetual Trustee Co Ltd (1987) 21 NSWLR 677
Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201
Slack v Rogan; Palffy v Rogan [2013] NSWSC 522; (2013) 85 NSWLR 253
Category: Principal judgment
Parties: Peter Raymond McCarthy (Plaintiff)
Geoffrey Norman Tye (Defendant)
Representation:
Counsel:
Mr G Rundle (Plaintiff)
Mr R Colquhoun (Defendant)
Solicitors:
Leanne White Solicitors (Plaintiff)
Stacks Law Firm (Defendant)

File Number(s): 2014/279135

Judgment

HIS HONOUR: This is an application under the Succession Act 2006 (NSW) by a person who claims to be either the de facto spouse or a person with whom the testatrix was living in a close personal relationship at the time of her death, or was otherwise an eligible person to make a claim on her estate. The testatrix is Diane Marjorie Green, who died on 12 May 2014, having first made and published her last Will and Testament on 1 July 2011, Probate of which was granted to her twin brother, the Defendant, on 5 August 2014.
The Plaintiff filed his Summons on 23 September 2014 and so is well within time for making an application.
I heard the application on 7 and 8 December 2015, together with evidence from 14 witnesses, and apart from one lay witness and two solicitors, all were cross-examined. Mr G Rundle of Counsel appeared for the Plaintiff, and Mr R Colquhoun of Counsel appeared for the Defendant. At the end of the hearing I said…

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 [2015] NSWSC 1947
Case: [2015] NSWSC 1947
Decision Date: 18 December 2015

CaseChat Overview and Summary

In the Family Court of Australia, the case of McCarthy v Tye involved a claim by the plaintiff, McCarthy, for provision under the Family Provision Act 1969 (Vic). McCarthy, who had been a boarder in the deceased's property, sought a share of the deceased's estate. The dispute centred on whether McCarthy qualified as an eligible person under sections 57(1)(b), (e), and (f) of the Act and whether the court should consider factors warranting the making of the application. The deceased's children, the defendants, argued that McCarthy did not meet the criteria for being an eligible person and that no provision should be made in his favour.

The legal issues before the court were whether McCarthy was eligible to make a claim under the Act and if so, what quantum of the estate should be awarded to him. The court examined McCarthy's relationship with the deceased, his contributions to the household, and his financial circumstances at the time of the deceased's death. It also considered the deceased's overall estate, the needs of the deceased's family members, and the factors outlined in section 57(2) of the Act.

The court found that McCarthy was an eligible person under section 57(1)(e) of the Act, as he had been living in the same property as the deceased and had contributed to the household. The court acknowledged that while McCarthy's contributions were not financial, they were of a domestic nature and were significant. The court also considered the factors in section 57(2) and found that they warranted the making of an application in McCarthy's favour. In determining the quantum, the court took into account McCarthy's financial needs and the overall size of the estate. The court awarded McCarthy a sum of money, recognising his contributions and the factors outlined in the Act.

The final orders of the court were that the plaintiff, McCarthy, was entitled to a provision from the estate of the deceased. The specific amount awarded was detailed in the judgment and reflected the court's consideration of the relevant factors and the contributions made by McCarthy.

Orders