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Ramsay v Schiller

Ramsay v Schiller

Case [2012] NSWSC 596 1 June 2012

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Ramsay v Schiller [2012] NSWSC 596
Hearing dates: 1 June 2012
Decision date: 01 June 2012
Jurisdiction: Equity Division
Before: Hallen AsJ
Decision:
Order that the Defendants' notice of motion filed on 2 March 2012 is dismissed. Order, by consent, that the costs of the Defendants' notice of motion filed on 2 March 2012 be the Plaintiffs' costs in the cause. Directions as to further conduct of the proceedings made by consent.

Catchwords: The sole issue is whether the court should determine a separate question - Defendants seek an order that the question whether property could form part of the notional estate of the deceased, should be tried separately - Plaintiffs oppose the Defendant's application "as presently framed" - Parties attend court with agreed question
Legislation Cited: Civil Procedure Act 2005
Family Law Act 1975 (Cth)
Succession Act 2006
Uniform Civil Procedure Rules
Cases Cited: AWB Ltd v Cole (No 2) (2006) 233 ALR 453
Commonwealth Bank of Australia v Clune [2008] NSWSC 1125
Downey v Acting District Court Judge Boulton (No 4) [2010] NSWCA 114
Flinn v Fearne [1999] NSWSC 1041
Highlands Pacific Ltd v Orogen Minerals Ltd [2002] FCA 1104
Hill v Hill (NSWSC, 13 March 1997 (then written submissions), 19 May 1997, unreported)
Idoport Pty ltd v National Australia Bank Ltd [2000] NSWSC 1215
Integral Home Loans Pty Ltd v Interstar Wholesale Finance Pty Ltd [2006] NSWSC 1464
Johnson v Trustees of the Roman Catholic Church [2009] NSWSC 309
O'Sullivan v Challenger Managed Investments Ltd [2008] NSWSC 602
Owners Corporation of Strata Plan 61390 v Multiplex Corporate Agency Pty Ltd (No 2) [2012] NSWSC 322
Perre v Apand Pty Ltd [1999] HCA 36; (1999) 198 CLR 180
Save the Ridge Inc v Commonwealth (2005) 147 FCR 97; 142 LGERA 18
Spirits International BV v Federal Treasury Enterprise (FKP) Sojuzplodoimport [2011] FCAFC 69
Street v Luna Park Sydney Pty Ltd [2007] NSWSC 697
Tepko Pty Ltd v Water Board [2001] HCA 19; (2001) 206 CLR 1
Vero Insurance Ltd v Tran [2008] NSWSC 166
Category: Procedural and other rulings
Parties: Jennifer Ramsay (first Plaintiff)
Lynn Maree DeFillippis (second Plaintiff)
Loretta Mary Schiller (first Defendant)
Penny Ann Lowe (second Defendant)
Representation: Mr M S Willmott SC & Mr A Hill (Plaintiffs/Respondents)
Mr J Ireland QC & Ms J Darvall (Defendants/Applicants)
Butlers Will Dispute Lawyers (Plaintiffs)
L P Alidenes & Co (Defendants)

File Number(s): 2011/136817

Judgment

The Application

HIS HONOUR: In the substantive proceedings, the Plaintiffs, Jennifer Ramsay and Lynn Maree De Fillippis, each of whom is a daughter of Jack Hicks ("the deceased"), applies for a family provision order under Chapter 3 of the Succession Act 2006 ("the Act"). The Act applies in respect of the estate of a person who died on, or after, 1 March 2009. A family provision order is an order made by the court, under Chapter 3, in relation to the estate, or notional estate, of a deceased person, to provide…

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 Ramsay v Schiller

Details

AGLC: Ramsay v Schiller [2012] NSWSC 596
Case: [2012] NSWSC 596
Decision Date: 01 June 2012

CaseChat Overview and Summary

The matter of Ramsay v Schiller came before the court where the plaintiffs sought to determine whether specific property could form part of the notional estate of the deceased. The defendants contested this claim and sought an order to have this question decided separately from the main proceedings. The plaintiffs opposed this application, arguing that the question was integral to the primary dispute and should be considered as such. The case was heard in a court with jurisdiction over estate disputes.

The central legal issue before the court was whether to bifurcate the question of whether certain property could be included in the notional estate of the deceased into a separate proceeding. The court had to consider the implications of such a bifurcation on the overall efficiency and fairness of the litigation process. The plaintiffs argued that this question was inherently connected to the main dispute, while the defendants contended that an independent determination would streamline the proceedings.

The court deliberated on the merits of separating the question from the main proceedings. It considered the potential impact on the judicial process, the rights of the parties, and the need for a comprehensive resolution of the dispute. Ultimately, the court found that the question was indeed integral to the primary dispute and should not be tried separately. The court emphasised the importance of a holistic approach to ensure that all relevant issues were addressed in a single proceeding. This decision ensured that the parties would not face protracted litigation and that the court could provide a definitive resolution to the matter at hand.

The court ordered that the question of whether the property could form part of the notional estate of the deceased would be determined as part of the main proceedings. The parties were instructed to proceed with the agreed question, which had been provided to the court. This ruling aimed to expedite the resolution of the dispute while maintaining fairness and ensuring that all relevant issues were addressed comprehensively.

Orders