Pateman v Pateman (deceased) - [2015] NSWSC 2151

Supreme Court

New South Wales

Medium Neutral Citation: Pateman v Pateman (deceased) [2015] NSWSC 2151
Hearing dates: 15 December 2015
Date of orders: 15 December 2015
Decision date: 15 December 2015
Jurisdiction: Equity - Family Provision List
Before: Brereton J
Decision:
Orders appointing representative of deceased defendant made.

Catchwords: PROCEDURE – appointment of person to represent defendant in proceedings – where defendant has died – where both defendant’s will and plaintiff seek appointment of different persons to represent defendant – function of defendant in family provision proceedings – where plaintiff has no proper interest in identity of person representing defendant – where appropriate representative party is person nominated in defendant’s will.
Legislation Cited: (NSW) Uniform Civil Procedure Rules 2005, r 7.10
Category: Procedural and other rulings
Parties: Graham Noel Pateman (first plaintiff)
Stephen James Pateman (second plaintiff)
Mark Anthony Pateman (third plaintiff)
Marree Ann Pateman (fourth plaintiff)
Vicki Lee Pateman (fifth plaintiff)
Ricky Pateman (defendant)
Peter Mark Saunders (alternate representative for the estate of the late Ronal James Pateman)
Representation:
Counsel:
D W Elliott (first plaintiff)
R Keller w R Armitage (second to fifth plaintiffs)
M Hadley (alternate representative)
Solicitors:
Pickering Law (plaintiffs)
Conroy Stewart Spagnolo (alternative representative)

File Number(s): 2015/271904

Judgment (ex tempore)

By notice of motion filed on 4 December 2015, an application is made on behalf of the defendant estate for the appointment of Phillip Scott Down, who is the executor named in the will of the present named defendant, the late Ricky Mark Pateman, to be appointed pursuant to (NSW) Uniform Civil Procedure Rules 2005, r 7.10, to represent the estate of Ronald James Pateman in the proceedings. By motion filed in court today, of which notice was earlier given informally, the first plaintiff Graham Noel Pateman seeks an order that one Peter Mark Saunders be appointed to represent the estate of Ronald James Pateman in these proceedings.
The present proceedings are proceedings for family provision orders. The deceased in those proceedings, whose will is the subject of the suit, is Ronald James Pateman. He named two executors in his last will, the first plaintiff Graham Noel Pateman, and the former defendant Ricky Mark Pateman. Graham Noel Pateman and four siblings commenced these proceedings for a family provision order. Because Graham Noel Pateman was a plaintiff, he was properly not joined as a defendant, and the defence of the proceedings was left to the late Ricky Mark Pateman.
After the proceedings were instituted, Ricky Mark Pateman died. In circumstances of the demise of the former defendant Ricky Mark Pateman, it is of course necessary that someone be appointed in his place to represent the interests of the estate of Ronald James Pateman in the present proceedings. There is scant evidence as to the terms of the will of Ricky Martin Pateman. The Court has been informed that his beneficiary is a former girlfriend or potentially de facto partner, but that there are likely to be claims against that estate for provision by two children of Ricky…

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 Pateman v Pateman (deceased)

Details

AGLC: Pateman v Pateman (deceased) [2015] NSWSC 2151
Case: [2015] NSWSC 2151
Decision Date: 15 December 2015

CaseChat Overview and Summary

The case of Pateman v Pateman (deceased) involved a dispute concerning the appointment of a representative to act on behalf of a deceased defendant in family provision proceedings. The plaintiff sought to have a specific individual appointed to represent the defendant, while the defendant's will nominated another person for this role. The matter was before the court to determine the appropriate representative for the deceased in the context of the ongoing family provision proceedings.

The central legal issue for the court was to decide which party should be appointed as the representative of the deceased defendant. This involved assessing the interests of the plaintiff and the directions provided in the deceased's will. The court had to consider the function of the representative in family provision proceedings and the extent to which the plaintiff had a proper interest in the identity of the person representing the deceased.

The court found that the plaintiff had no proper interest in the identity of the person representing the deceased, as the primary concern in family provision proceedings is the resolution of the dispute rather than the plaintiff's preference for a specific representative. Given that the deceased had nominated a person in their will to represent them, the court concluded that this nominated individual was the appropriate representative. The court held that the function of the representative was to act in accordance with the directions provided in the will, and the plaintiff's lack of interest in the representative's identity did not override the clear nomination made by the deceased.

The court ordered that the person nominated in the will of the deceased be appointed as the representative in the family provision proceedings. This decision underscored the importance of respecting the deceased's wishes as expressed in their will, particularly in the context of family provision disputes.

Orders