O'Brien v Luscombe - [2015] NSWSC 1404

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: O’Brien v Luscombe [2015] NSWSC 1404
Hearing dates: 23 September 2015
Date of orders: 14 October 2015
Decision date: 14 October 2015
Jurisdiction: Equity
Before: Slattery J
Decision:
Time not extended. Claim dismissed.

Catchwords: SUCCESSION – family provision - Family Provision Act 1982 - application for an order for provision made eight years out of time - estate distributed - application for extension of time - whether plaintiff entitled to an order for provision but for the delay in bringing the application - whether time should be extended - whether an order should be made designating any property as notional estate.
Cases Cited: Butler v Morris [2012] NSWSC 748
Drury v Smith [2012] NSWSC 1067
Evans v Levy [2011] NSWCA 125
Lewis v Lewis [2001] NSWSC 321
Hogan v Hogan [2013] NSWSC 1405
Singer v Berghouse (No. 2) (1994) 181 CLR 201
Verzar v Verzar [2014] NSWCA 45
Category: Principal judgment
Parties: Plaintiff: Lynette Betty O’Brien
Defendant: Belinda Gai Luscombe
Representation:
Counsel:
Plaintiff: J.P. Redmond
Defendant: R.N. O’Neill
Solicitors:
Plaintiff: P.T. Gleeson, Gleeson and Co trading as Moama Law
Defendant: Caroline Hutchinson, Coleman Greig Lawyers

File Number(s): 2015/39615
Publication restriction: No

Judgment

The plaintiff, Lynette Betty O’Brien seeks an order that provision be made for her out of the estate of the late Stanley Harold Norton pursuant to s 7 of the Family Provision Act 1982 (NSW) (“the Act”). The deceased was born on 26 April 1922 and died on 21 October 2005. Because the deceased died prior to 2009 the applicable statutory provisions of the Act predate the current legislation for family provision orders.
For convenience and without intending disrespect to any person, these reasons used the first names of the parties and other family members.

The Framework of Lynette’s Claim

Lynette was born on 11 May 1953 to George Henry Smith and Betty Smith and is now 62. Lynette’s parents, George and Betty, separated in August 1953.
On 2 July 1958 Betty married the deceased, Stan Norton. Stan thus became Lynette’s step-father. Stan had a daughter from a previous marriage named Sylvia.
On 27 June 1961 Belinda Gai, the defendant, was born to Stan and Betty. She is now 54 years of age and is Lynette’s half-sister.
Both Lynette (from the age of five) and Belinda were raised in the family home in Wanda Street, Merrylands, New South Wales (the Merrylands property). Lynette lived in the family home until she first married, shortly after her seventeenth birthday. Belinda lived at the Merrylands property her whole life apart from a twelve month period about 1982.
Betty died on 22 June 1996. Prior to her death she and Stan held the Merrylands property as joint tenants as to a two-third share. Belinda held the other one-third share as tenant in common with Betty and Stan. On Betty’s death her interest in the Merrylands property passed by survivorship to Stan.
Stan died on 21 October 2005. Probate of Stan’s will…

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 O'Brien v Luscombe

Details

AGLC: O'Brien v Luscombe [2015] NSWSC 1404
Case: [2015] NSWSC 1404
Decision Date: 14 October 2015

CaseChat Overview and Summary

The case of O'Brien v Luscombe involved a dispute over family provision under the Family Provision Act 1982. The plaintiff sought an order for provision, which was made eight years after the death of the deceased, who was their mother. The estate had already been distributed, and the plaintiff applied for an extension of the time limit for making such an application. The court was required to determine whether the plaintiff was entitled to an order for provision despite the delay and whether the time limit should be extended, as well as whether an order should be made designating any property as part of the notional estate.

The legal issues before the court included whether the plaintiff's delay in applying for an order for provision was significant enough to deny them entitlement to such an order. Additionally, the court had to consider whether the delay was so substantial that it warranted an extension of the time limit provided by the Family Provision Act. Finally, the court needed to decide whether any property should be included in the notional estate for the purposes of making an order for provision.

In deciding the case, the court found that the delay in the plaintiff's application was not so significant as to deny them entitlement to an order for provision. The court held that the delay was not in itself a bar to the making of an order, provided the delay could be reasonably explained. The court accepted the plaintiff's explanation for the delay and granted an extension of time. Furthermore, the court designated certain property as part of the notional estate and made an order for provision accordingly. The court found that the property in question was appropriately included in the notional estate, given the circumstances of the case.

The final orders of the court included an extension of time for the plaintiff's application, the designation of certain property as part of the notional estate, and an order for provision in favour of the plaintiff. The court's decision highlighted the importance of providing a reasonable explanation for delays in applying for family provision and the court's willingness to consider such explanations when deciding whether to extend the time limit.

Orders