Sang v Choy - [2004] NSWSC 1121

CITATION: Sang v Choy [2004] NSWSC 1121

HEARING DATE(S): 19 November 2004

JUDGMENT DATE:
23 November 2004

JURISDICTION:
Equity Division

JUDGMENT OF: Master Macready at 1

DECISION: Paragraph 41

CATCHWORDS: Succession - Family provision - Joint tenancy - Notional estate. Application for family provision. - No estate but jointly owned property passed to defendant by survivorship. - Attempt to sever joint tenancy by executing transfer. - Whether agreement to sever joint tenancy. - Whether property designated as notional estate of deceased. - Whether plaintiff entitled to provision. - Held: Plaintiff receive legacy of $100,000.00.

PARTIES :
Betty Sang v Lawrence Choy

FILE NUMBER(S): SC 1439 of 2003

COUNSEL: L.J. Ellison for plaintiff
J.R. Wilson SC

SOLICITORS: Patrick Timbs & Company
Back Schwartz Vaughan

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Master Macready

Tuesday 23 November 2004

1439/2003 Betty Sang v Lawrence Choy

JUDGMENT

1 Master: This is an application under the Family Provision Act 1982 (NSW) in respect of the estate of the late Margaret Choy who died on 7 September 2001. The deceased had eight children, two of whom are the plaintiff and the defendant in this matter survived the deceased.

The will of the deceased

2 The deceased made a will in 1970 in which she left the whole of her estate to her youngest son Lawrence, the defendant in the proceedings. On 21 May 2000 the deceased made a will in which she left "my half of the estate located and 14 Lyon St. Randwick" to her eight children. Probate of that will was not obtained, as the deceased left no estate.

3 The plaintiff has obtained a grant under section 41A of the Wills Probate and Administration Act 1898 (NSW). Any notional estate of interest in this matter is held by the defendant who was the joint owner with the deceased of her property at Randwick. He acquired the property by survivorship on the deceased's death. In these circumstances I made an order that the defendant represent the estate of the deceased for the purposes of these proceedings.

Assets in the estate

4 As I have said there was no estate and after the deceased’s property had been transferred to the defendant, he sold it for the sum of $860,000.00. Thereafter in accordance with his mother's wishes he paid $10,000.00 to each of his sisters save one to whom he paid $20,000.00.

5 Costs have been incurred by both parties in this matter with those of the plaintiff amounting to $44,364.00 and those of the defendant amounting to $27,265.00.

Family history

6 The deceased was born on 18 June 1911 in China and she married in 1933. The plaintiff was born on 12 December 1938. In 1939 the deceased’s husband arrived in Australia and commenced a business in Harris Street, Pyrmont. His wife and family were trapped in China and they came to Australia in 1946.

7 The defendant was the youngest of the children of the deceased and…

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 Sang v Choy

Details

AGLC: Sang v Choy [2004] NSWSC 1121
Case: [2004] NSWSC 1121
Decision Date: 23 November 2004

CaseChat Overview and Summary

Sang v Choy involved a family provision application brought by the plaintiff, Sang, against the defendant, Choy. The dispute arose from the death of Sang's father, who owned a property jointly with Choy. Upon the father's death, the property passed to Choy by survivorship, as they held the property as joint tenants. Sang sought an order for family provision from the property, arguing it should be considered part of his father's estate.

The legal issues before the court included whether there was an agreement to sever the joint tenancy prior to the father's death, whether the property could be considered part of the father's notional estate, and if Sang was entitled to a provision from the property. The court had to determine the validity of any alleged agreement to sever the joint tenancy and whether the property was intended to be part of the father's estate for the purposes of family provision.

The court found that there was indeed an agreement to sever the joint tenancy, evidenced by a transfer document executed by the father and Choy. However, the transfer was not formally registered, which left the property still held as joint tenants at the time of the father's death. The court concluded that the property formed part of the father's notional estate as it was intended to be dealt with in accordance with the agreement. Given the circumstances and the family provision legislation, the court ordered that Sang receive a legacy of $100,000.00 from the property.

Orders