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Russell v Rindfleish

Russell v Rindfleish

Case [2002] NSWSC 910 3 October 2002

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CITATION: Russell v Rindfleish [2002] NSWSC 910

CURRENT JURISDICTION: Equity Division

FILE NUMBER(S): SC 3348/00

HEARING DATE(S): 23,24,25 July 2002
16,17 September 2002

JUDGMENT DATE: 3 October 2002

PARTIES :

Nida Russell v Thomas John Rindfleish (Estate of Terrance Alfred Russell)

JUDGMENT OF: Acting Justice Macready at 1

COUNSEL : Mr F. Santisi for plaintiff
Miss K. Ottesen for defendant

SOLICITORS: Hunter Lawyers for plaintiff
R.L. Whyburn & Associates for defendant

CATCHWORDS: Trusts. Claims for express trust and constructive trust. On the facts not proved. Equity. Estoppel. Former wife does not make a claim for property settlement as a result of representations by husband that he would provide for her in his will. Loss of opportunity to make a claim. Family Provision. Application by former wife. Legacy allowed.

DECISION: Paragraph 76

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Acting Justice Macready

Thursday 3 October 2002

3348/00 Nida Russell v Thomas John Rindfleish (Estate of Terrance Alfred Russell)

JUDGMENT

1 His Honour: These proceedings concern the estate of the late Terrance Alfred Russell who died on the 30th of January 1999 aged 62 years. The deceased was survived by the plaintiff his second wife, his three children by his first marriage and his two children from his marriage to the plaintiff. The plaintiff's first wife is still alive and she has been given notice of these proceedings. She makes no claim.

2 The plaintiff makes a claim that the deceased’s property was held in part either by way of express or constructive trust for the plaintiff or that the deceased was estopped from denying that the house would be held in part for her. As an alternative the plaintiff makes a claim under the Family Provision Act 1982. The whole of the proceedings were referred to a Master for hearing. At the commencement of the hearing I was then a Master of the Court.

The Will of the Deceased

3 The deceased made his last will on 19 July 1990. Under that will he appointed the defendant and his daughter Kim as executors. The deceased gave a legacy of $20,000 to each of his children by his first marriage these being Kim Elisabeth Sullivan, Gabriel Mary Hansford and Michael Patrick Russell. He left the residue of his estate for such of his children by his second marriage, namely Melissa Theresa Russell and Mark Terrance Russell as shall survive him and attain the aged 21 years. In default of them both surviving, the estate went to his children by his first marriage.

The Estate of the Deceased

4 The only substantial asset that the deceased had at the date of his death was his house at 3 Hordern Avenue, Petersham. That is now valued at between $430,000 and $470,000. There was an insurance policy of a little over $4000 that has been got in and used for costs in the estate. The plaintiff's costs are estimated at $46,000 for a three-day hearing and those of the…

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 Rindfleish

Details

AGLC: Russell v Rindfleish [2002] NSWSC 910
Case: [2002] NSWSC 910
Decision Date: 3 October 2002

CaseChat Overview and Summary

Russell v Rindfleish involved a dispute between the parties regarding claims for an express trust and a constructive trust over certain properties. The matter was heard in the Family Court of Australia. The former wife, the applicant, sought to establish that certain properties were held on trust for her benefit, both expressly and constructively, based on representations made by the former husband during their marriage.

The court had to determine whether the former wife's claims for an express trust and a constructive trust were substantiated. Additionally, the court examined whether the former wife's claim for property settlement was barred due to her reliance on the former husband's representations, and if estoppel principles applied to prevent her from making a claim for property settlement. The court also needed to decide whether the former wife's claim for a family provision order was valid, given the circumstances of the case.

The court concluded that the former wife had not provided sufficient evidence to support her claims for an express trust and a constructive trust. While the former wife had relied on representations made by the former husband regarding future provision for her in his will, these did not amount to a binding agreement or trust. However, the court found that the former wife's claim for a family provision order was successful, allowing her a legacy from the former husband's estate. The court held that the former husband's representations did not create an estoppel preventing the former wife from making a claim for property settlement, and the loss of opportunity to make a claim did not override the need for fair provision.

The court's final orders included allowing the former wife's application for a family provision order, granting her a legacy from the former husband's estate. The claims for an express trust and a constructive trust were dismissed for lack of evidence.

Orders