Philpott v Pantos

Case [2018] NSWSC 852


Supreme Court


New South Wales

Medium Neutral Citation: Philpott v Pantos [2018] NSWSC 852
Hearing dates: 15 May 2018
Date of orders: 15 May 2018
Decision date: 14 June 2018
Jurisdiction:Equity
Before: Hallen J
Decision:

Orders that the Summons be dismissed.

 

Orders that the Plaintiff pay the Defendants’ costs, calculated on the indemnity basis, from 28 February 2018, and their costs calculated on the ordinary basis prior to that date.

 Orders that the exhibits be returned.
Catchwords:

SUCCESSION – FAMILY PROVISION – The Plaintiff, an adult child of the deceased, makes a claim for a family provision order – No dispute as to the Plaintiff’s eligibility as a child of the deceased – First and second Defendants are also adult children of the deceased and the executors and principal beneficiaries named in the Will –– Small estate in value – No provision made for Plaintiff in the deceased’s Will – Whether family provision order should be made, and if so, the nature and quantum of the provision to be made – No order for provision made

 

Deceased’s estate reduced partly because of severance of joint tenancy in which the Plaintiff is said to have played a part –– As a result, provision of the one half interest in that property received by Plaintiff from her father’s estate – Relevance of benefit received out of the father’s estate

COSTS – Offer of Compromise served about 2.5 months prior to the hearing – Defendants obtained order no less favourable than offer made – Whether Court’s discretion should be exercised to depart from UCPR – Overall justice of the case does not warrant exercise of the Court’s discretion
Legislation Cited: Family Provision Act 1982 (NSW)
Succession Act 2006 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: AB v Curry & Anor (No 2) [2015] NSWSC 1209
Alexander v Jansson [2010] NSWCA 176
Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308
Bartlett v Coomber [2008] NSWCA 100
Bates v Cooke (2015) 14 ASTLR 221; [2015] NSWCA 278
Bates v Cooke (No 2) [2014] NSWSC 1322
Boettcher v Driscoll (2014) 119 SASR 523; [2014] SASC 86
Bondelmonte v Blanckensee [1989] WAR 305
Borebor v Keane [2013] VSC 35
Bosch v Perpetual Trustee Co Ltd [1938] AC 463
Bowditch v NSW Trustee and Guardian [2012] NSWSC 275
Bowyer v Wood (2007) 99 SASR 190; [2007] SASC 327
Briggs v Mantz (No 2) [2014] VSC 487
Burke v Burke [2015] NSWCA 195
Butcher v Craig [2009] WASC 164
Chan v Chan [2016] NSWCA 222
Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392
Christie v Manera [2006] WASC 287
Crossman v Riedel [2004] ACTSC 127
de Angelis v de Angelis [2003] VSC 432
Devereaux-Warnes v Hall (No 3) (2007) 35 WAR 127; [2007] WASCA 235
Diver v Neal [2009] NSWCA 54
Dobb v Hacket (1993) 10 WAR 532
Flathaug v Weaver [2003] NZFLR 730
Foley v Ellis [2008] NSWCA 288
Gardiner v Gardiner (Supreme Court (NSW), Santow…

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AGLC
Philpott v Pantos [2018] NSWSC 852
Case
[2018] NSWSC 852
Decision Date

CaseChat Overview and Summary

In the case of Philpott v Pantos, the plaintiff, an adult child of the deceased, sought a family provision order against the estate of her father. The defendants, who are also adult children of the deceased and the executors and principal beneficiaries under the will, opposed the claim. The estate was of modest value, and the plaintiff was not provided for in the deceased’s will. The central issue for the court was whether a family provision order should be made and, if so, the nature and quantum of the provision.

The court considered the plaintiff's claim in the context of the modest estate and the absence of any provision for her in the will. The plaintiff argued that she had contributed to the estate by assisting in severing joint tenancy, which resulted in her receiving half of one property from her father’s estate. The court had to weigh the relevance of this benefit against her entitlement to a family provision order. Furthermore, the court was required to determine whether to exercise its discretion under the Uniform Civil Procedure Rules to depart from the offer of compromise made by the defendants.

The court found that the overall justice of the case did not warrant departing from the offer of compromise, and as such, no family provision order was made. The court considered the small value of the estate, the benefit received by the plaintiff, and the terms of the offer of compromise in reaching this decision. Consequently, the defendants obtained an order no less favourable than the offer made, and the plaintiff’s claim was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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