Page v Page

Case [2017] NSWCA 141

Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Page v Page [2017] NSWCA 141
Hearing dates:30 May 2017
Decision date: 22 June 2017
Before: Basten JA at [1];
Leeming JA at [22];
Sackville AJA at [49]
Decision:

1. Appeal dismissed.
2. Appellant to pay the respondent’s costs.

Catchwords: Family provision claim by younger brother of the deceased – whether the brother was “partly dependent” on the deceased within the meaning of s 57(1)(e) of the Succession Act 2006 (NSW) where both once lived in the same household as their mother – whether the primary Judge erred in finding there were no factors warranting the making of the application for the purposes of s 59(1)(b) of the Succession Act 2006 (NSW) – whether allegations of historic sexual abuse by the deceased could be a factor warranting the application
Legislation Cited:

Family Provision Act 1982 (NSW), ss 6, 9
Succession Act 2006 (NSW), ss 57(1), 59, 60, 61, 63, 64, Pt 3.2, Pt 3.3
Supreme Court Act 1970 (NSW), ss 75A, 101

Uniform Civil Procedure Rules 2005 (NSW), r 51.53
Cases Cited: Aafjes v Kearney (1976) 180 CLR 199; [1976] HCA 5
Alexander v Jansson [2010] NSWCA 176; 6 ASTLR 432
Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308
Ball v Newey (1988) 13 NSWLR 489
Barns v Barns (2003) 214 CLR 169; [2003] HCA 9
Bayssari v Bazouni [2014] NSWSC 910
Burge v Burge [2015] NSWCA 289
Churton v Christian (1988) 13 NSWLR 241
Costa v The Public Trustee of NSW [2008] NSWCA 223
Diver v Neal [2009] NSWCA 54; 2 ASTLR 89
Holmes v Permanent Trustee Co of New South Wales Ltd (1932) 47 CLR 113; [1932] HCA 1
House v The King (1936) 55 CLR 499; [1936] HCA 40
Hurst v Public Trustee [2000] NSWSC 1109
Jones (A pseudonym) v Smith (A pseudonym) [2016] VSCA 178
Latoudis v Casey (1990) 170 CLR 534
McKenzie v Baddeley [1991] NSWCA 197
Middleton v Kiama District Hospital [1970] 3 NSWR 136
Norbis v Norbis (1986) 161 CLR 513
Norris v Routley; Routley v Norris [2016] NSWCA 367
Page v Page [2016] NSWSC 1218
Page v Page [No 2] [2016] NSWSC 1323
Petrohilos v Hunter (1991) 25 NSWLR 343
Re Fulop Deceased (1987) 8 NSWLR 679
Sanderson as Liquidator of Sakr Nominees Pty Ltd (in liquidation) v Sakr [2017] NSWCA 38
Saravinovski v Saravinovska [2017] NSWCA 85
Sassoon v Rose [2013] NSWCA 220
Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40
Somogy v Kune [1999] NSWSC 1168
Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285
Tullamore Bowling & Citizens Club Ltd v Lander [1984] 2 NSWLR 32
Warren v Coombes (1979) 142 CLR 531
Texts Cited: Testator’s Family Maintenance and Guardianship of Infants Act, 1916 (New South Wales Law Reform Commission, Report 28, 1977)
Category:Principal judgment
Parties: Warren Page (Appellant)
Patricia Page (Respondent)
Representation:

Counsel:
Mr IR Coleman SC / Ms L Clarke…

Continue reading Page v Page

Sign in free to access the full text

Details
AGLC
Page v Page [2017] NSWCA 141
Case
[2017] NSWCA 141
Decision Date

CaseChat Overview and Summary

The appeal concerned a family provision claim brought by the younger brother of the deceased, who sought provision from the deceased's estate. The primary judge had dismissed the claim, and the brother appealed to the Court of Appeal of New South Wales.

The central legal issues before the Court of Appeal were whether the appellant was "partly dependent" on the deceased within the meaning of s 57(1)(e) of the *Succession Act 2006* (NSW), and whether the primary judge had erred in finding that there were no factors warranting the making of the application for the purposes of s 59(1)(b) of the *Succession Act 2006* (NSW). A further issue was whether allegations of historic sexual abuse by the deceased against the appellant could constitute a factor warranting the application.

The Court of Appeal considered the appellant's submissions regarding his alleged partial dependency and the relevance of the historic abuse allegations. The court ultimately found no error in the primary judge's determination that the appellant had not established the necessary criteria for a family provision claim under the *Succession Act 2006* (NSW). The court's reasoning focused on the statutory requirements for dependency and the factors that warrant the making of an application, concluding that these had not been met.

The appeal was dismissed, and the appellant was ordered to pay the respondent's costs.

Orders

Orders of the court

1. Appeal dismissed.

2. Appellant to pay the respondent’s costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.