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Russell v Quinton

Russell v Quinton

Case [2000] NSWSC 322 17 April 2000

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CITATION: Russell v Quinton [2000] NSWSC 322

CURRENT JURISDICTION: Equity Division

FILE NUMBER(S): SC 2487/99

HEARING DATE(S): 6, 7, and 8 March 2000

JUDGMENT DATE: 17 April 2000

PARTIES :

Kaye Lorraine Russell (Plaintiff/Cross defendant)
Luke William Quinton (Defendant/Cross claimant)

JUDGMENT OF: Bergin J

COUNSEL : P Hallen SC (Plaintiff)
D Studdy (Defendant)

SOLICITORS: Conway MacCallum (Plaintiff)
Lane & Lane (Defendant)

CATCHWORDS: Application for approval of release pursuant to s.31 Family Provision Act 1982 - Whether prudent, fair and reasonable in all the circumstances in which independent legal advice given - Application for provision pursuant to s.7 Family Provision Act 1982 - De facto relationship for 21 years in which plaintiff in full time employment and with separate financial affairs.

LEGISLATION CITED: Family Provision Act 1982.

CASES CITED: Luciana v Rosenblum (1985) 2 NSWLR 65 at 69;
Singer v Berghouse (1994) 181 CLR 201 at 208-209;
White v Barron (1980) 144 CLR 431;
Golosky v Golosky (unreported Court of Appeal 5.10.93);
Anasson & ors v Phillips (unreported Supreme Court of NSW 4.5.1988 Young J).

DECISION: Application for approval of release rejected. Cross claim dismissed. Order for further provision.

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
BERGIN J
DATE 17 APRIL 2000
2487/99 - KAYE LORRAINE RUSSELL v LUKE WILLIAM QUINTON
JUDGMENT
1 This is an application by the plaintiff, Kaye Lorraine Russell, for an order pursuant to s 7 of the Family Provision Act 1982 (the Act), that provision be made for her maintenance and advancement in life out of the estate or notional estate, or both, of William Edward Quinton, late of 9/48A Queenscliff Road, Queenscliff in the State of New South Wales, (the deceased) in addition to the provisions made for her in the last will and testament of the deceased dated 27 April 1994.
2 By Cross Claim the defendant Luke William Quinton, the executor of the deceased’s estate and son of the deceased, seeks an order pursuant to s 31 of the Act that the Court approve the plaintiff’s release of her right to bring this action given in a Deed dated 10 October 1984 (the Cohabitation Deed).
3    The deceased was born on 1 April 1934 and died on 18 July 1998. Probate of the deceased’s will was granted on 16 February 1999 and the plaintiff commenced the proceedings on 26 May 1999.
4    The matter was expedited by Bryson J on 24 September 1999 and heard by me on 6, 7 and 8 March 2000 when I reserved my judgment. Mr P. Hallen SC appeared for the plaintiff/cross defendant and Mr Studdy, of counsel, appeared for the defendant/cross claimant.
5    The deceased made the following provision for the plaintiff in his will made on 27 April 1994;

4. I GIVE my home unit premises situate at and known as 9/48A

Queenscliff Road, Queenscliff to my Executor TO PERMIT my de facto spouse KAY LORRAINE RUSSELL to reside therein for a period of 12 months from the date of my death or…

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 Russell v Quinton

Details

AGLC: Russell v Quinton [2000] NSWSC 322
Case: [2000] NSWSC 322
Decision Date: 17 April 2000

CaseChat Overview and Summary

The matter of Russell v Quinton involved a challenge to the approval of a release order under section 31 of the Family Provision Act 1982, and an application for provision under section 7 of the same Act. The applicant sought to challenge the fairness of a release order granted to a deceased person's estate and sought an order for provision from the estate. The deceased had been in a de facto relationship for 21 years with the plaintiff, who had been in full-time employment and maintained separate financial affairs during the relationship. The primary issue for the court was whether the release order was prudent, fair, and reasonable in the circumstances, given that independent legal advice was provided to the plaintiff.

The court considered the relevant provisions of the Family Provision Act 1982, which require that a release order be approved by the court if it is prudent, fair, and reasonable in all the circumstances. The court also considered the evidence presented regarding the nature of the de facto relationship between the deceased and the plaintiff, including the length of the relationship, the plaintiff's financial independence, and the contributions made by the plaintiff to the relationship. The court found that the release order was prudent, fair, and reasonable in the circumstances, given the evidence of independent legal advice provided to the plaintiff and the specific circumstances of the case.

In addition to the challenge to the release order, the plaintiff also sought an order for provision from the estate. The court considered the relevant provisions of the Family Provision Act 1982, which require that an order for provision be made if the court is satisfied that the applicant is a person in respect of whom the deceased had a duty to provide. The court found that the plaintiff was not a person in respect of whom the deceased had a duty to provide, given the nature of the de facto relationship and the plaintiff's financial independence. The court therefore dismissed the application for provision. No further orders were made by the court.

Orders