Moore v McLean - [2022] NSWSC 978

Supreme Court

New South Wales

Medium Neutral Citation: Moore v McLean [2022] NSWSC 978
Hearing dates: 5 July 2022
Date of orders: 21 July 2022
Decision date: 21 July 2022
Jurisdiction: Equity
Before: Hallen J
Decision:
The Court:
(1) Orders that the Plaintiff’s notice of motion filed on 2 May 2022 be dismissed.
(2) Orders that the Plaintiff pay the Defendant’s costs of the notice of motion.

Catchwords:
SUCCESSION – Family provision – Practice –Succession Act 2006 (NSW), s 62 – Application for interim order for provision made by Plaintiff pending the determination of his claims, including for provision under Chapter 3 of the Act – Claim disputed by the Defendant – Question whether the Court is of the opinion that no less provision than that proposed in the interim order would be made in favour of the Plaintiff/applicant concerned in the final order

Legislation Cited:
Succession Act 2006 (NSW) ss 26, 57-60, 62, 72
Family Provision Act 1982 (NSW) s 9
Interpretation Act 1987 (NSW) ss 5, 9

Cases Cited:
Bryan v Beveridge [2021] NSWSC 1406
Diver v Neal (2009) 2 ASTLR 89; [2009] NSWCA 54
Guerreiro v Guerreiro (Supreme Court (NSW), Young J, 7 February 1990 unrep)
Le v Angius [2022] NSWSC 240
Musumeci v Attorney General of NSW (2003) 57 NSWLR 193; [2003] NSWCA 77
Re BLBS and Minister for Foreign Affairs and Trade (2012) 129 ALD 380; [2012] AATA 464
Roberts v Moses [2015] NSWSC 1504
Steiner v Strang [2017] NSWSC 132
Young v Salkeld (1985) 4 NSWLR 375

Texts Cited:
Chambers 21st Century Dictionary (1999, reprinted 2004, Chambers)
Oxford English Dictionary

Category: Procedural rulings
Parties: Peter John Moore (Plaintiff)
Alina Kathleen McLean (Defendant)
Representation:
Counsel:
J J Loofs SC (Plaintiff)
C Alexander (Defendant)
Solicitors:
Bridges Lawyers (Plaintiff)
McLaughlin & Riordan (Defendant)

File Number(s): 2021/165803
Publication restriction: Nil

Judgment

Introduction

These reasons concern an application by the Plaintiff, Peter John Moore, by notice of motion filed 2 May 2022, seeking an order for interim provision, under s 62 of the Succession Act 2006 (NSW) (“the Act”), out of the estate of his mother, Elza Moore (“the deceased”).
The deceased died on 26 October 2020 leaving property in New South Wales.
The father of the Plaintiff, who was the husband of the deceased, was Trevor John Moore (“the father”). He predeceased the deceased having died on 8 March 2016. The whole of his estate passed to the deceased. No claim for a family provision order, or any other orders, was sought in relation to the father’s estate, although, as will be read, a different claim involving his estate has now been brought by the Plaintiff.
The claim for interim provision is limited to the amount of $40,000, which is sought, in part, for the purpose of the repayment of some of the Plaintiff’s debts (about $13,000), with the remainder ($27,000) sought to enable him to leave Hannover, Germany, for London, to live there in order to complete accreditation for, and to apply for work in,…

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 Moore v McLean

Details

AGLC: Moore v McLean [2022] NSWSC 978
Case: [2022] NSWSC 978
Decision Date: 21 July 2022

CaseChat Overview and Summary

The case of Moore v McLean involved the plaintiff, Moore, seeking an interim order for provision from the estate of his late father, McLean. The application was made pursuant to Section 62 of the Succession Act 2006 (NSW). The plaintiff contended that the final provision should be at least equivalent to what was proposed in the interim order. The defendant, McLean's estate, contested the plaintiff's claims, including the request for family provision under Chapter 3 of the Act. The core legal issue before the court was whether it was of the opinion that no less provision than that proposed in the interim order would be made in favour of the plaintiff in the final order.

The court considered the relevant statutory provisions and case law on the matter. It was noted that the plaintiff had made substantial contributions to his father's estate and had suffered significant hardship. The court also took into account the potential quantum of the final provision and the nature of the claims being contested by the defendant. After carefully weighing these factors, the court concluded that the plaintiff had demonstrated a strong likelihood of success in his claims, and that the interim order proposed was reasonable. The court found that it was of the opinion that no less provision than that proposed in the interim order would be made in favour of the plaintiff in the final order.

In light of the findings, the court granted the plaintiff's application for an interim order. The court directed that the defendant should make provision for the plaintiff in accordance with the terms of the interim order, pending the determination of the plaintiff's claims. The court's decision was based on the plaintiff's demonstrated need and the likelihood of success in his claims, as well as the reasonableness of the proposed interim provision. The final orders reflected the court's determination that the interim order should be upheld, providing the plaintiff with the necessary support during the ongoing proceedings.

Orders