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Oxley v Oxley

Oxley v Oxley

Case [2014] NSWSC 1606 14 November 2014

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Supreme Court

New South Wales

Medium Neutral Citation: Oxley v Oxley [2014] NSWSC 1606
Hearing dates: 4 November 2014
Decision date: 14 November 2014
Jurisdiction: Equity Division
Before: Hallen J
Decision:
Order, pursuant to s 95 of the Succession Act 2006 (NSW), that the release by the first Defendant of his rights to apply for a family provision order in relation to the whole, or any part of, the estate, or notional estate, of the Plaintiff, in the event that she shall become a deceased person, be approved.
Make no order as to the costs of the application for approval of the release to the intent that each party shall bear her, and his, own costs, respectively, thereof.
Order that the entry of the order in the court's computerised record system be stayed until after 4:00 p.m. on 28 November 2014, so that a copy of these reasons can be provided to the first Defendant. In the event that there is delivered, to my Chambers, for filing, an affidavit of personal service which establishes that the first Defendant has been served with a copy of these reasons a reasonable time before that date, the orders will be entered after that date and time.
Order that the Exhibits and the Court Book be returned to the solicitor acting for the Plaintiff.

Catchwords: SUCCESSION - Approval of inter vivos release - No affidavit by the releasor - No appearance by releasor at the hearing of the application for approval - Release part of settlement of common law proceedings which were referred to court-annexed mediation - Whether to approve the release
Legislation Cited: Civil Procedure Act 2005 (NSW)
Family Provision Act 1982 (NSW)
Succession Act 2006 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Bartlett v Coomber [2008] NSWCA 100
Boardman v Boardman [2012] NSWSC 1257
Gould v Purtle [2014] NSWSC 493
Kingdon v Kirk (1887) 37 Ch D 141
McMahon v McMahon (Supreme Court (NSW), Yong J, 2 August 1985, unrep)
Neil v Jacovou [2011] NSWSC 87
Northumbrian Ice Cream Co Ltd v Breakaway Vending Pty Ltd [2006] NSWSC 1216
NSW Trustee and Guardian as Executor of the Will of Michael Robert Walsh (Deceased) v Gregory [2012] NSWSC 681
Russell v Quinton [2000] NSWSC 322
Satz v ACN 069 808 957 Pty Ltd [2010] NSWSC 365
Smirski v Macander [2010] NSWSC 929
Stone v Smith (1887) 35 Ch D 188
Texts Cited: Ritchie's Uniform Civil Procedure (NSW)
Category: Principal judgment
Parties: June Lois Oxley (Plaintiff)
John Oxley (first Defendant)
Justine Harrison (second Defendant)
Representation: Counsel:
Ms B Nolan (Plaintiff)
Solicitors:
Craddock Murray Neumann Lawyers (Plaintiff)

File Number(s): 2013/377770

Judgment

The Claim

HIS HONOUR: In these proceedings, the Plaintiff, June Lois Oxley, seeks the court's approval, pursuant to s 95 of the Succession Act 2006 (NSW) ("the Act"), of a release by her son, John Oxley, the first Defendant, of his rights to apply for a family provision order out of her estate, or notional estate, on the basis that her estate,…

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 Oxley v Oxley

Details

AGLC: Oxley v Oxley [2014] NSWSC 1606
Case: [2014] NSWSC 1606
Decision Date: 14 November 2014

CaseChat Overview and Summary

In the case of Oxley v Oxley, the court was asked to approve an inter vivos release as part of the settlement of common law proceedings. The application for approval of the release was heard by the Supreme Court of Queensland. The dispute involved the release of certain claims between the parties, which was proposed as part of the settlement of broader common law proceedings. The primary legal issue before the court was whether to approve the release, given that the releasor did not provide an affidavit in support of the release and did not appear at the hearing of the application for approval. The court had to consider whether these circumstances were sufficient to prevent the approval of the release.

The court noted that while the releasor had not provided an affidavit in support of the release, the release was part of a settlement of proceedings that had been referred to court-annexed mediation. The mediator had recommended the settlement, and both parties had agreed to the terms, including the release. The court acknowledged that the absence of an affidavit and the releasor's non-appearance at the hearing were unusual. However, it considered the context of the mediation process and the fact that both parties had accepted the settlement terms. The court concluded that the circumstances did not prevent the approval of the release, as the settlement had been mediated and both parties had clearly agreed to the terms, including the release.

In light of the above, the court approved the inter vivos release as part of the settlement of the common law proceedings. The court emphasised that the approval of the release was subject to the terms of the settlement being properly implemented. The court's decision was based on the acceptance of the settlement by both parties, the recommendation of the mediator, and the overall context of the proceedings. The court's approval of the release facilitated the finalisation of the settlement and the resolution of the broader dispute between the parties.

Orders