Parker v Parker - [2006] NSWSC 473

CITATION: Parker v Parker [2006] NSWSC 473

HEARING DATE(S): 05/05/2006

JURISDICTION: Equity Division

JUDGMENT OF: Brereton J

EX TEMPORE JUDGMENT DATE: 05/05/2006

DECISION: In lieu of provisions of Will, legacies of $47,000, $80,000 and $25,000 to plaintiffs with residue to defendant. Costs recoverable by first and third plaintiffs capped at $20,000 and $45,000. Indemnity costs in favour of second plaintiff.

CATCHWORDS: SUCCESSION - Family provision – claims by 3 of 6 adult children of deceased – estate of $347,000 left to defendant eldest son – no claims by surviving former spouse – no needs-based claim by beneficiary – claim by first plaintiff compromised for $47,000 – circumstances of second plaintiff change adversely after death – substantial need for maintenance established – third plaintiff establishes modest contribution-based claim for advancement – priority of obligation to provide for maintenance over obligation to provide for advancement – legacies of $80,000 to second plaintiff and $25,000 to third plaintiff – COSTS – where small estate with multiple claims – relevance of “rule of thumb” that plaintiff’s costs in such claims should be limited to $35,000 – relevance of amount recovered – recoverable costs capped – Indemnity costs – where plaintiff betters offer of compromise – indemnity costs from date of offer.

LEGISLATION CITED: Family Provision Act 1982 (NSW)
Property (Relationships) Act 1984 (NSW)

CASES CITED: Bosch v Perpetual Trustee Co Ltd [1938] AC 463
Deves v Porter [2003] NSWSC 878
Moore v Moore [2004] NSWSC 587
Re Fulop (1987) 8 NSWLR 679
Singer v Berghouse (1994) 181 CLR 201
Stewart v McDougal (NSWSC, Young J, 19 November 1987, unreported)
Van Zonneveld v Seaton (No 2) [2005] NSWSC 175

PARTIES:
4544/05
Donna Margaret Townsend (P)
Nigel Henry Francis Parker (D)
7029/04
Nicole Maree Corry (P)
Nigel Henry Francis Parker (D)
5615/04
Michael Howard John Parker (P)
Nigel Henry Francis Parker; Estate Of Howard Neville Parker (D)

FILE NUMBER(S): SC 4544/05; 7029/04; 5615/04

COUNSEL: 4544/05 - Mr G Gemmell (P); Mr V Gray (D)
7029/04 - Ms S Mason (P); Mr V Gray (D)
5615/04 - Mr P O'Loughlin (P); Mr V Gray (D)

SOLICITORS: 4544/05 - Rice More & Gibson
7029/04 - Turnbull Hill Lawyers
5615/04 - Kells The Lawyers

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRERETON J

Friday 5 May 2006

4544/05 DONNA MARGARET TOWNSEND v NIGEL HENRY FRANCIS PARKER; ESTATE OF HOWARD NEVILLE PARKER

7029/04 NICOLE MAREE CORRY v NIGEL HENRY FRANCIS PARKER; ESTATE OF HOWARD NEVILLE PARKER

5615/04 MICHAEL HOWARD JOHN PARKER v NIGEL HENRY FRANCIS PARKER; ESTATE OF HOWARD NEVILLE PARKER

JUDGMENT (ex tempore)

1 HIS HONOUR: Howard Neville Parker died on 2 April 2004. He was divorced and aged 76 years of age. He was survived by his former wife, who has since remarried, and by six children: the defendant Nigel born 30 April 1954, the plaintiff Michael born 9 June 1957, Lee Anthony born 27 July 1959, the plaintiff Donna born 21 September 1961, Michelle born 9 September 1963, and the plaintiff Nicole born…

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 Parker v Parker

Details

AGLC: Parker v Parker [2006] NSWSC 473
Case: [2006] NSWSC 473
Decision Date: 05/05/2006

CaseChat Overview and Summary

In the case of Parker v Parker, the dispute involved three of the six children of the deceased, who contested the distribution of their father's estate, valued at $347,000. The estate was left to the eldest son, and the surviving former spouse did not make any claims. The first plaintiff settled their claim for $47,000, while the second plaintiff had their circumstances deteriorate after the deceased's death, establishing a substantial need for maintenance. The third plaintiff presented a modest claim for advancement based on their contribution. The court had to decide on the priority of the obligation to provide for maintenance over the obligation to provide for advancement.

The court deliberated on whether the second plaintiff's need for maintenance should be prioritised over the third plaintiff's claim for advancement, given the modest nature of the latter. The court found that the second plaintiff's substantial need for maintenance took precedence over the third plaintiff's contribution-based claim for advancement. The court awarded $80,000 to the second plaintiff and $25,000 to the third plaintiff, reflecting the differing nature of their claims.

Regarding costs, the court considered the small size of the estate and the multiple claims made by the plaintiffs. The court recognised the relevance of the general rule that a plaintiff's costs in such cases should be limited to $35,000. However, the amount recovered by the plaintiffs influenced the final determination of costs. The court also considered the impact of the plaintiffs bettering their offers of compromise and awarded indemnity costs from the date of the offer.

The court's final orders included legacies of $80,000 to the second plaintiff and $25,000 to the third plaintiff. Additionally, the court capped the recoverable costs and awarded indemnity costs from the date of the offer, taking into account the small estate and the multiple claims made by the plaintiffs.

Orders