Redenbach v Norris Bros Pty Ltd - [2025] NSWSC 765

Supreme Court

New South Wales

Medium Neutral Citation: Redenbach v Norris Bros Pty Ltd [2025] NSWSC 765
Hearing dates: 14 July 2025
Date of orders: 14 July 2025
Decision date: 14 July 2025
Jurisdiction: Equity
Before: Meek J
Decision:
Orders extending the time for making a rectification application made. Rectification orders made. Order for costs of and incidental to the application be paid out of the estate made.

Catchwords:
SUCCESSION — Wills — Succession Act 2006 (NSW) s 27 — Application for rectification of Will — Whether Will gives effect to the testator’s intention — Will gifts nephew property traced by the Lachlan River, including stock and crops on the land but omits reference to water access licence required to utilise the property effectively — Evidence from solicitor that omission was an oversight — Found that Will did not give effect to testator’s intention — Rectification orders made
SUCCESSION — Wills — Succession Act 2006 (NSW) s 27 — Request for an extension of time for making a rectification application — Whether extension is necessary — Whether final distribution of estate has been made — Order extending time for application made

Legislation Cited:
Succession Act 2006 (NSW)
Water Act 1912 (NSW)
Water Management Act 2000 (NSW)
Wills Probate and Administration Act 1898 (NSW)

Cases Cited:
Austin v Woodward [2011] EWHC 2458 (Ch)
Bear v Bear; Jordan v Bear [2022] NSWSC 1687
Bell v Georgiou [2002] EWHC 1080 (Ch)
Lewis v Lewis (2021) 105 NSWLR 487; [2021] NSWCA 168
Reeves v Reeves [2024] NSWSC 134
Ryledar Pty Ltd v Euphoric Pty Ltd (2007) 69 NSWLR 603; [2007] NSWCA 65
Seymour Whyte Constructions Pty Ltd v Ostwald Bros Pty Ltd (in liquidation) (2019) 99 NSWLR 317; [2019] NSWCA 11
Trimmer v Lax (Supreme Court (NSW), Hodgson J, 9 May 1997, unrep: BC9702254)
Vescio v Bannister (Estate of the late Betty Tait) [2010] NSWSC 1274; (2010) 3 ASTLR 619
Wordingham v Royal Exchange Trust Co Ltd [1992] Ch 412

Texts Cited:
Australian Government Commonwealth Environmental Water Holder, “About the Lachlan River” (Webpage) (see endnotes for accessible link)
Carr, Daniel J, “Rectification of testamentary writings in Scotland, England and Wales, and Australia” (2023) 17 Journal of Equity 181
Catchment Management Authority, “Lachlan (Kalare*) Catchment Action Plan 2013-2023”
Heydon, D, MJ Leeming and PG Turner, Meagher, Gummow & Lehane’s Equity: Doctrine & Remedies (5th ed, 2014, LexisNexis Butterworth)
Lake Cargelligo, “Welcome to Lake Cargelligo and surrounds” (Webpage) (see endnotes for accessible link)
Oxford Dictionary, online ed

Category: Principal judgment
Parties: John Redenbach – First Plaintiff
Scott Harvey – Second Plaintiff
Norris Bros Pty Ltd - Defendant
Representation: Counsel:
C Birtles with J Lee – First and Second Plaintiffs
Solicitors:
Bartier Perry Lawyers – First and Second Plaintiffs

File Number(s): 2025/00119591

ex tempore JUDGMENT (revised)

Introduction

HIS HONOUR: The Lachlan River is the fourth longest river in Australia commencing near Goulburn in the Great Dividing Range and ending at the Great Cumbung Swamp near Oxley New South Wales.

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.

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Details

Case: [2025] NSWSC 765
Decision Date: 14 July 2025

CaseChat Overview and Summary

Redenbach v Norris Bros Pty Ltd involved an application to rectify a will and an extension of time for making a rectification application. The testator's will bequeathed property traced by the Lachlan River to the nephew, but omitted any reference to the water access licence necessary to effectively use the property. The applicant sought to rectify the will to include the water access licence, arguing it was omitted due to an oversight by the solicitor. The court had to decide whether the will reflected the testator's intention and whether an extension of time was necessary for the rectification application.

The legal issues before the court included determining whether the omission of the water access licence from the will was an oversight and whether this omission meant the will did not give effect to the testator's true intention. The court also had to consider whether an extension of time was warranted given that the final distribution of the estate had not yet been made. The court's decision hinged on the interpretation of the Succession Act 2006 (NSW) and the evidence presented regarding the testator's intentions and the circumstances surrounding the drafting of the will.

The court found that the will did not give effect to the testator's intention as it failed to include the water access licence, which was necessary for the effective use of the property. The evidence from the solicitor supported the conclusion that the omission was an oversight. Consequently, the court granted the application to rectify the will to include the water access licence. Additionally, the court granted an extension of time for the application, noting that the final distribution of the estate had not yet been made. The court's decision ensured that the estate was distributed in accordance with the testator's true intentions.

Orders