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Scott v Scott

Scott v Scott

Case [2009] NSWSC 567 19 June 2009

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CITATION: Scott v Scott [2009] NSWSC 567

HEARING DATE(S): 27 and 28 May and 1 June 2009

JUDGMENT DATE :
19 June 2009

JURISDICTION: Equity Division
Family Provision Act List

JUDGMENT OF: Ward J

DECISION: Plaintiff and defendant/cross-claimant each succeed in part. Order for provision made in favour of defendant/cross-claimant.

CATCHWORDS: EQUITY – trusts and trustees – resulting trusts – wife provided entire purchase price for matrimonial home acquired in names of husband and wife as tenants in common in unequal shares – whether presumption of resulting trust rebutted – held that presumption rebutted. - REAL PROPERTY – joint tenancy and tenancy in common – property held by husband and wife as joint tenants – whether joint tenancy severed by conduct or agreement in course of separation and informal division of property – held that joint tenancy severed by conduct. - SUCCESSION – family provision and maintenance – failure by testator to make sufficient provision for applicant – whether inadequate provision made for deceased’s wife – entire estate left to minor grandchild – relevance of separation and informal division of property shortly before death – considerations finely balanced – held that inadequate provision made – modest legacy ordered.

LEGISLATION CITED: Conveyancing Act 1919
Family Law Act 1975
Family Provision Act 1982
Uniform Civil Procedure Rules

CATEGORY: Principal judgment

CASES CITED: Abela v Public Trustee [1983] 1 NSWLR 308
Armstrong v Sloan [2002] VSC 229
Black v Black (2008) Fam LR 503
Bladwell v Davis [2004] NSWSC 170
Buffery v Buffery & Anor [2006] NSWSC 1349
Burgess v Rawnsley [1975] 2 Ch 449
Calverley v Green (1984) 155 CLR 242
Churton v Christian (1988) 13 NSWLR 241
Corin v Patton (1990) 169 CLR 540
Cropley v Cropley [2002] NSWSC 349
Damberg v Damberg [2001] NSWCA 87
Dijkhuijs (formerly Coney) v Barclay (1988) 13 NSWLR 639
Drever v Drever [1936] ALR 446
Ernst v Mowbray [2004] NSWSC 1140
Fenato v Antonello [2006] NSWSC 763
Foley v Ellis [2008] NSWCA 288
Grey v Harrison [1997] 2 VR 359
Groom v De Vandes (1805) 11 Ves Jun 330; 32 ER 1115
Kalmar v Kalmar [2006] NSWSC 437
Magill v Magill (1993) NSW Conv R 55-663
Minter v Minter (2000) 10 BPR 18,133
Mulcahy v Weldon [2001] NSWSC 474
Nicholls v Hall [2007] NSWCA 356
Nielson-Jones v Feddon [1935] 1 Ch R 222
O’Loughlin v Low [2002] NSWSC 222
O’Shaughnessy v Mantle (1986) 7 NSWLR 142
On v On [2002] NTSC 18
Palmer v Dolman [2004] NSWCA 361
Permanent Trustee Co Limited v Fraser (1995) 36 NSWLR 24
Pfeiffle v Pfeiffle (1989) 13 Fam LR 692
Prentice v Cummins (No 6) (2003) 134 FCR 449
Price v Roberts [1992] NSWCA 191
Public Trustee v Pfeiffle [1991] 1 VR 19
Re Allingham [1932] VLR 469
Re Clissold (deceased) [1970] 2 NSWR 619
Re Commonwealth Bank [2009] NSWSC 81
Re Debney [1960] SR (NSW) 471
Re Fulop deceased (1987) 8 NSWLR 679
Re Gilbert (1946) 46 SR (NSW) 318
Re Mercer deceased [1977] 1 NZLR…

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 Scott v Scott

Details

AGLC: Scott v Scott [2009] NSWSC 567
Case: [2009] NSWSC 567
Decision Date: 19 June 2009

CaseChat Overview and Summary

The parties involved in the case were Scott and Scott, with the dispute centred around the equitable and legal ownership of a matrimonial home and the deceased's estate. The case was heard in a higher court, presumably within the Australian judicial system. The central issue was whether the presumption of a resulting trust, which would give the wife a disproportionate share of the property, was rebutted given that she provided the entire purchase price for the home. Additionally, the court needed to determine if the joint tenancy of the property was severed by the conduct or agreement during the couple's separation and informal division of their assets.

The court examined the evidence of the couple's separation and the informal division of their assets, which was relevant to both the resulting trust and joint tenancy issues. Regarding the resulting trust, the court found that the presumption was rebutted, likely due to the wife's contributions to the home's purchase price. In terms of the joint tenancy, the court ruled that the tenancy was severed by the couple's conduct, which supported the notion of an informal division of their assets. The court carefully considered the balance of factors in determining that the wife had not been adequately provided for by the deceased, who left the entire estate to their minor grandchild.

The court ordered that the wife, as the applicant, be granted a modest legacy from the estate, reflecting the finely balanced considerations in the case. This outcome took into account the separation and informal division of property, as well as the deceased's failure to make sufficient provision for the applicant. The final orders were aimed at providing the applicant with a fair share of the estate, while also acknowledging the complexities of the case and the various factors that needed to be weighed in making its determination.

Orders