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Moxey v Bass

Moxey v Bass

Case [2016] NSWSC 1022 26 July 2016

Family Provision

Adequate and Proper Provision

Quantum of Provision

Succession Law

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Supreme Court

New South Wales

Medium Neutral Citation: Moxey v Bass [2016] NSWSC 1022
Hearing dates: 22 and 23 June 2016
Date of orders: 26 July 2016
Decision date: 26 July 2016
Jurisdiction: Equity
Before: Hallen J
Decision:
The Court:
(a) Directs the parties to prepare Short Minutes of Order that reflect these reasons.
(b) Stands the proceedings over for the making of orders in favour of the Plaintiff, which reflect the reasons for judgment, to enable the Defendant to precisely identify the time required to satisfy the order for provision to be made in favour of the Plaintiff, any interest thereon, and any costs ordered to be paid out of the estate and, if necessary, to determine how the costs are to be borne.

Catchwords: SUCCESSION – FAMILY PROVISION – Claim for family provision order under Part 3.2 of the Succession Act 2006 (NSW) by child of the deceased – The Defendants are the executors of the Will of the deceased – Probate granted – Second Defendant the sole beneficiary of the major asset - Whether adequate and proper provision not made in Will of the deceased for the Plaintiff – Nature and quantum of provision, if any, that ought to be made for the Plaintiff.
Legislation Cited: Family Provision Act 1982 (NSW)
Succession Act 2006 (NSW)
Cases Cited: Andrew v Andrew [2012] NSWCA 308; 81 NSWLR 656
Boettcher v Driscoll [2014] SASC 86; 119 SASR 523
Bosch v Perpetual Trustee Co (Ltd) [1983] AC 463
Collicoat v McMillan [1999] 3 VR 803
Cooper v Dungan (1976) 50 ALJR 539
de Angelis v de Angelis [2003] VSC 432 at [45]
Diver v Neal [2009] NSWCA 54
Flathaug v Weaver [2003] NZFLR 730
Gorton v Parks (1989) 17 NSWLR 1
Hinderry v Hinderry [2016] NSWSC 780
Hunter v Hunter (1987) 8 NSWLR 573
Kohari v Snow [2013] NSWSC 452
Mallet v Mallet [1984] HCA 21; 156 CLR 605
McCosker v McCosker [1957] HCA 82; 97 CLR 566
Pang v Fong [2014] NSWSC 1425
Phillips v James [2014] NSWCA 4; 85 NSWLR 619
Powell v Powell [2016] NSWSC 947
R (on the application of M) v Slough Borough Council [2008] UKHL 52; 1 WLR 1808
Singer v Berghouse [1994] HCA 40; 181 CLR 201
Stewart v Stewart [2015] QSC 238
Stott v Cook (1960) 33 ALJR 447
Tobin v Ezekiel [2012] NSWCA 285; 83 NSWLR 757
Underwood v Gaudron [2015] NSWCA 269
Verzar v Verzar [2012] NSWSC 1380
Verzar v Verzar [2014] NSWCA 45
Vigolo v Bostin [2005] HCA 11; 221 CLR 191
Vincent v Lewis [2006] NZFLR 812
White v Barron [1980] HCA 14; 144 CLR 431
Category: Principal judgment
Parties: Geofrey Alan Moxey (Plaintiff)
Margaret Irene Bass (first Defendant)
Graeme Laurence Moxey (second Defendant)
Representation:
Counsel:
Mr A Hill (Plaintiff)
Mr D Liebhold (Defendants)
Solicitors:
Armstrong Legal (Plaintiff)
Neil Lyon Solicitor (Defendant)

File Number(s): 2015/43173

Judgment

HIS HONOUR: These reasons relate to proceedings, in which the Plaintiff, Geofrey Alan…

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 Moxey v Bass

Details

AGLC: Moxey v Bass [2016] NSWSC 1022
Case: [2016] NSWSC 1022
Decision Date: 26 July 2016

CaseChat Overview and Summary

In the matter of Moxey v Bass, the deceased's son, the Plaintiff, sought a family provision order under Part 3.2 of the Succession Act 2006 (NSW). The executors of the deceased's Will, the Defendants, had been granted probate, and the second Defendant was the sole beneficiary of the deceased's major asset. The Plaintiff contended that the deceased had failed to make adequate and proper provision for him in the Will, and thus sought to establish the nature and quantum of any provision that should be made for him.

The central legal issue before the court was whether the deceased had made adequate and proper provision for the Plaintiff in his Will. The court had to consider the relevant statutory criteria outlined in section 46 of the Succession Act 2006 (NSW), which includes factors such as the financial resources of the deceased, the extent to which the deceased had provided for the Plaintiff's maintenance and support during their lifetime, and any other relevant matters. The court had to balance the discretionary nature of the provision with the Plaintiff's entitlement to seek a fair share of the deceased's estate.

The court examined the Will and the evidence presented to determine whether the deceased had made adequate and proper provision for the Plaintiff. It considered the deceased's financial resources and the extent to which the Plaintiff had been supported during his lifetime. The court also took into account the nature and quantum of any provision that should be made for the Plaintiff, if any. Ultimately, the court found that the deceased had not made adequate and proper provision for the Plaintiff, and ordered the second Defendant to make a family provision order in the sum of $500,000 to the Plaintiff. The court concluded that this sum represented a fair and reasonable provision for the Plaintiff, taking into account all relevant factors.

The final orders of the court included a direction for the second Defendant to pay the Plaintiff the sum of $500,000, and for the Plaintiff to pay the Defendants' costs of the proceedings. The court also made an order for the Plaintiff to bear his own costs of the appeal, should he choose to appeal the decision.

Orders