Rijven v Lynam and Rijven - [2023] ACTSC 265

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Rijven v Lynam and Rijven

Citation:

[2023] ACTSC 265

Hearing Date:

11 September 2023

Decision Date:

11 September 2023

Reasons Date:

19 September 2023

Before:

McWilliam J

Decision:

(1)	Pursuant to rr 210 and 256(5) of the Court Procedures Rules 2006 (ACT) (*Rules), Marilouise Rijven (Marilouise*) is made a party to the proceeding in addition to the existing parties.
(2)	Pursuant to s 9A of the Family Provision Act 1969 (ACT) and r 1613(2)(d) and (2)(e) of the Rules, the Orders made by the Court on 10 May 2021 in this proceeding are set aside.
(3)	In lieu of the provision made for her in the Will of Maria Adriana Rijven dated 31 July 2014 (Will), the sum of $26,000 is to be paid to Shantini Devi.
(4)	In lieu of the provision made for them under the Will, the net proceeds of the sale of the properties located at [address redacted] Hackett in the Australian Capital Territory and [address redacted] Lyneham in the Australian Capital Territory) are to be distributed as follows:

(a) 30.5% to Paul Martin Rijven ;
(b) 34.75% to Gregory Ian Rijven; and
(c) 34.75% to Marilouise.

(5) Except as provided for in Orders 4 and 5 made by the
Court on 10 May 2021, and the payment to Marilouise of
$2,000, the parties bear their own costs.
(6) THE COURT NOTES: The agreement of the parties, the
terms of which have been read onto the record on 11
September 2023.

Catchwords:	SUCCESSION – FAMILY PROVISION – Consent orders previously made following settlement – where court was
unaware that a beneficiary was opposed to the making of the
orders but was not a party to the proceedings – previous consent orders set aside – where parties reached a further settlement – further orders made by consent
Legislation Cited:	Court Procedures Rules 2006 (ACT) r 210, 256, 1613 Family Provision Act 1969 (ACT) ss 8(4), 9A, 10
Cases Cited:	Bartlett v Coomber [2008] NSWCA 100 Blendell v Blendell [2020] NSWCA 154
Daley v Donaldson [2022] NSWCA 96
Permanent Trustee Co (Canberra) Ltd v Stocks & Holdings
(Canberra) Pty Ltd (1976) 15 ACTR 45 Poletti v Jones [2015] NSWCA 107; 13 ASTLR 113 Richardson v Richardson [2022] ACTSC 363 Tobin v Ezekiel [2012] NSWCA 285; 83 NSWLR 757
Parties:	Paul Martin Rijven (Plaintiff)
Bridget Margaret Lynam & Gregory Ian Rijven (as joint executors of the estate of Maria Adriana Rijven) (First Defendant)
Marilouise Rijven (Second Defendant)
Representation:	Counsel
A Muller (Plaintiff) G Blank (First Defendant)
D Moujalli (Second Defendant)
Solicitors
Maliganis Edwards Johnson (Plaintiff)
MV Law (First Defendant)
Thomson Geer (Second Defendant)
File Number:	SC 241 of 2019
McWilliam J:
1․	These proceedings involve a claim for family provision which settled in May 2021, with
the Court making orders by consent on 10 May 2021. The plaintiff in the proceedings is
Paul Martin Rijven (Paul). His two…

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: [2023] ACTSC 265
Decision Date

CaseChat Overview and Summary

These proceedings were brought by Paul Martin Rijven, who sought family provision from the estate of his deceased mother, Maria Adriana Rijven. The executors of the estate, Bridget Margaret Lynam and Gregory Ian Rijven, who are Paul's siblings, were the defendants. Marilouise Rijven, who is Ian’s estranged wife and a beneficiary under the will, was not initially a party to the proceeding, despite being effectively denied procedural fairness in opposing a settlement that had been reached by the executors and Paul. The Court was asked to set aside the orders that had been made by consent and to grant relief in the form of orders that would reflect the settlement that had again been reached between all parties.

The court considered whether it was appropriate to set aside the orders previously made by consent. The court noted that it has inherent jurisdiction to set aside orders made by consent if the judgment has been irregularly entered. It also has the power to set aside orders under s 9A of the Family Provision Act 1969 (ACT), and the relevant Rules. The court found that there were good reasons to set aside the orders, as Marilouise had not been given procedural fairness, and the interests of at least one of the beneficiaries had been adversely affected by the orders. The court also found that the circumstances of the case provided a strong basis for the exercise of the Court’s discretion under s 9A of the Act to discharge the orders and make further orders.

The court found that the new orders proposed by the parties were appropriate to be made, and that the statutory thresholds for making an order under the Act were met. The court ordered that Marilouise be made a party to the proceeding, the orders made by the Court on 10 May 2021 were set aside, and new orders were made in lieu. The parties were ordered to bear their own costs, except as provided in previous orders, and a payment of $2,000 to Marilouise.

Orders