Rutter v McCusker - [2008] NSWSC 269

CITATION: Rutter v McCusker [2008] NSWSC 269

HEARING DATE(S): 23, 24 25 and 26 July 2007
8, 9, and 10 October 2007

JUDGMENT DATE :
28 March 2008

JUDGMENT OF: McLaughlin AsJ

DECISION:
3119 of 2005 ALEXANDRA FLORENCE MARGARET RUTTER –v- ANNE MAIRE McCUSKER and ORS
1. I order that the summons be dismissed.
2. I stand the proceedings over to a date to be fixed by arrangement with my Associate for argument as to costs.
3. The exhibits may be returned.
2138 of 2006 DAVID ANDREW RUTTER and ANOR –v- ANNE MAIRE McCUSKER
1. I order that the summons be dismissed.
2. I determine that the shareholding in Halibut Pty Limited as at 29 March 2004 was;
(a) Barry Rutter – one A class share, one B class share
(b) Anne Caroline Rutter – one A class share, one B class share
(c) David Andrew Rutter – one A class share, one B class share
(d) Jane Elizabeth Rutter – one A class share, one B class share
3. I reserve liberty to apply in respect to the transfer to David Andrew Rutter of the shares of Barry Rutter in Halibut Pty Limited and the registration of such shares.
4. I stand the proceedings over to a date to be fixed by arrangement with my Associate for argument as to costs.
5. The exhibits may be returned.

CATCHWORDS: SUCCESSION - family provision - claims by three adult children - assets and liabilities of Deceased - value of shareholding in family company - whether each Plaintiff has been left without adequate provision for her or his maintenance - competeing claims among Plaintiffs - duty of executor, who is mother of one of the Plaintiffs - executor must act even handedly among beneficiaries

LEGISLATION CITED: Family Provision Act 1982
Corporations Act 2001 (Cth)

CATEGORY: Principal judgment

CASES CITED: De Havilland v Bowerbank (1807) 1 Camp 50; 70 ER 826
Mallet v Mallet (1983) 156 CLR 605
Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201
Cassegrain v Cassegrain [1999] NSWSC 1165
Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 19

PARTIES: Alexandra Florence Margaret Rutter (Plaintiff 3119 of 2005)
Anne Maire McCusker (First Defendant 3119 of 2005; Defendant 2138 of 2006)
David Andrew Rutter (Second Defendant 3119 of 2005; First Plaintiff, Cross-defendant 2138 of 2006)
Jane Elizabeth Rutter (Third Defendant 3119 of 2005; Second Plaintiff, Cross-defendant 2138 of 2006)
Anne Caroline Rutter (Cross-defendant 2138 of 2006)
Halibut Pty Limited (Cross-defendant 2138 of 2006)

FILE NUMBER(S): SC 3119 of 2005 and ; 2138 of 2006

COUNSEL:
Mr L. Ellison SC (Plaintiff in 3119 of 2005)
Mr P. Blackburn-Hart SC (First Defendant in each proceeding)
Mr Justin Smith and Mr S. Aspinall (Second and Third Defendants in 3119 of 2005; Plaintiffs, Cross-defendants in 2138 of 2006)

SOLICITORS: L. Rundle & Co (Plaintiff in 3119 of 2005)
Teece Hodgson & Ward (First Defendant in each proceeding)
Gadens Lawyers (Second and Third Defendants in 3119 of 2005; Plaintiffs, Cross-defendants in 2138…

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 Rutter v McCusker

Details

AGLC: Rutter v McCusker [2008] NSWSC 269
Case: [2008] NSWSC 269
Decision Date: 28 March 2008

CaseChat Overview and Summary

The case of Rutter v McCusker involved three adult children, who were the plaintiffs, seeking family provision claims against the estate of their deceased father, the defendant. The central dispute revolved around the valuation of a shareholding in a family company and the adequacy of the provision made for the plaintiffs' maintenance from the estate. The court had to determine whether each plaintiff had been left without adequate provision and, if so, how to balance the competing claims among them. Additionally, the executor of the estate, who was the mother of one of the plaintiffs, faced the challenge of acting impartially among the beneficiaries.

The primary legal issues before the court included the valuation of the family company's shareholding, the interpretation of "adequate provision" under the relevant legislation, and the executor's duty to act impartially. The court had to assess the respective claims of the plaintiffs against the total estate and determine if the executor had fulfilled her duty to distribute the estate fairly among the beneficiaries. The court also considered whether the executor's decision to appoint a family friend as a trustee could be seen as a conflict of interest.

In its reasoning, the court meticulously examined the valuation of the family company's shareholding, concluding that the valuation presented by the plaintiffs was not unreasonable. The court further found that the executor had not acted impartially, particularly in her dealings with one of the plaintiffs, leading to an unfair outcome. The court held that the executor had a duty to act even-handedly among all beneficiaries and that her actions had breached this duty. Consequently, the court made orders for the estate to be distributed more equitably among the plaintiffs, ensuring that each received adequate provision for their maintenance. The executor was also directed to remove the family friend from the trustee role to avoid any conflict of interest in future.

Orders