Seeto v Seeto

[2014] NSWCA 295

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Seeto v Seeto [2014] NSWCA 295

Hearing dates:

On the papers

Decision date:

29 August 2014

Before:

Beazley P at [1];
Meagher JA at [1];
Hallen J at [1]

Decision:

(1) Order that the appeal be upheld in part.

(2) Order that the orders made by the Supreme Court (Slattery J) on 20 September 2013 be varied as follows:

(a) Order 2 varied by deleting reference to orders 5 and 7;

(b) Order 3 varied by deleting all words after "deceased";

(c) Orders 4, 7, 8, and 9 deleted.

(3) Order that the appeal otherwise is dismissed.

(4) Order that the appellants pay the respondent's costs of and incidental to the appeal.

(5) Note the following agreements between the parties:

(a) That the costs due to the plaintiff (respondent) by order 5 made on 20 September 2013 are $144,000;

(b) That the costs due to the respondent by order 4 above are $60,000;

(c) That in consideration of the parties consenting to the making of the orders herein, the respondent releases the estate and notional estate of the deceased from any further claim by him for a family provision order pursuant to the Family Provision Act 1982;

(d) That proceedings 2014/132696 are associated with these proceedings, that the parties to these proceedings consent to the orders being made in those proceedings and that the parties to those proceedings consent to the orders being made in these proceedings;

(e) That the parties to these proceedings, agree to the terms of the orders being made in the associated proceedings concerning the manner in which the provision and costs amounts in each of the proceedings are to be paid.

(6) Order, pursuant to s 31 of the Family Provision Act 1982, that the release by the respondent of his rights to apply for any further family provision order out of the whole or any part of the estate or notional estate of Kim Yum Bong Seeto be approved.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

WILLS AND ESTATES - family provision claim - Family Provision Act 1982 (NSW), s 31 - approval of release of rights to further claim - no question of principle

Legislation Cited:

Family Provision Act 1982 (NSW), s 31
Succession Act 2006 (NSW), Sch 1, cl 11
Succession Amendment (Family Provision) Act 2008 (NSW), s 2(1)

Texts Cited:

New South Wales Government Gazette, No 38, 20 February 2009, at 1036

Category:

Principal judgment

Parties:

Kim Yum (Raymond) Seeto (First Appellant)
Wing On Investments Pty Ltd (Second Appellant)
Phillip Seeto (Respondent)

Representation:

Counsel:
L Ellison SC (Appellants)
JE Robson SC, M Gorrick (Respondent)
Solicitors:
Macpherson + Kelly Lawyers (Sydney) Pty Ltd (Appellants)
Slater & Gordon Lawyers (Respondent)

File Number(s):

2013/312014

 Decision under appeal 

Jurisdiction:

9111

Citation:

Phillip Seeto v Kim Yum Bong Seeto & Anor (No 2) [2013] NSWSC 1386

Date of Decision:

2013-09-20 00:00:00

Before:

Slattery J

File Number(s):

2011/405719

Judgment

1. THE COURT: In these proceedings, Phillip Seeto sought provision out of the estate of his late father, Kim Seeto. He succeeded in that claim before Slattery J and is the respondent to the appeal. The first appellant in the appeal is the executor of the estate of Kim Seeto to whom probate was granted. The second appellant is a corporate trustee of a family trust to which Kim Seeto, by will, gave the whole of his estate.

1. In the proceedings 2014/132696 (associated proceedings), Phillip Seeto makes a claim for provision out of the estate of his late mother, Yu Mey Seeto. The defendants in the associated proceedings are the same, being the executor of the estate of Yu Mey Seeto (although probate has not yet been granted of her last will) and the corporate trustee to whom Yu Mey Seeto, by will, gave the whole of her estate. Those proceedings have not been heard or determined.

1. In each case, the deceased person in respect of whose estate the claim was made, died before the commencement of cl 11 of Schedule 1 to the Succession Act 2006 (NSW). That commencement date was 1 March 2009: see s 2(1) of the Succession Amendment (Family Provision) Act 2008 (NSW) and New South Wales Government Gazette, No 38, 20 February 2009, at 1036. Accordingly, each of the claims for a family provision order was one brought under the Family Provision Act 1982 (NSW).

1. At the request of the parties, and pursuant to an order made by Meagher JA on 18 July 2014, and pursuant to an order made by Hallen J on 17 July 2014, the appeal and the associated proceedings, respectively, were mediated and resolved by consent on 13 August 2014.

1. It was one of the terms of the settlement of the appeal and of the associated proceedings that Phillip Seeto agree to release his rights to make any further claim for provision out of the estate and notional estate of each of his parents respectively.

1. The resolution of both proceedings was also interdependent. The terms of the resolution, in each matter, make it a condition of the operation of the settlement that the Court of Appeal and the Supreme Court will make the agreed orders in each, and will approve the release of Phillip Seeto's rights to make a further claim under s 31 of the Family Provision Act in respect of the estate and notional estate of each of his parents.

1. The release in these proceedings is in the following terms:

"Note the agreement of the parties that in consideration of the parties consenting to the making of the orders herein, the Respondent releases the estate and notional estate of the Deceased [Kim Hung Seeto] from any further claim for a family provision order pursuant to the Family Provision Act 1982, s31".

1. A release by a person of the person's rights to make an application in relation to a deceased person has no effect unless the Court has given its approval under s 31 of the Family Provision Act.

1. The affidavit filed in support of the application for the making of orders approving the release, being an affidavit of Phillip Seeto sworn 20 August 2014, read in both proceedings, explains the steps that have been taken to satisfy the requirements of s 31(5) and confirms his understanding of the meaning of the release and the effect of the approval, in each case.

1. Having considered the affidavit and the matters in s 31(5) of the Family Provision Act, the Court is satisfied that it should give its approval to the release which Phillip Seeto has given by the consent orders which he has signed.

1. Accordingly, the Court makes the following orders and notes the following agreements between the parties. Orders 1 to 4 are made by consent.

(1)   Order that the appeal be upheld in part.

(2)   Order that the orders made by the Supreme Court (Slattery J) on 20 September 2013 be varied as follows:

(a)   Order 2 varied by deleting reference to orders 5 and 7;

(b)   Order 3 varied by deleting all words after "deceased";

(c)   Orders 4, 7, 8, and 9 deleted.

(3)   Order that the appeal otherwise is dismissed.

(4)   Order that the appellants pay the respondent's costs of and incidental to the appeal.

(5)   Note the following agreements between the parties:

(a)   That the costs due to the plaintiff (respondent) by order 5 made on 20 September 2013 are $144,000;

(b)   That the costs due to the respondent by order 4 above are $60,000;

(c)   That in consideration of the parties consenting to the making of the orders herein, the respondent releases the estate and notional estate of the deceased from any further claim by him for a family provision order pursuant to the Family Provision Act 1982;

(d)   That proceedings 2014/132696 are associated with these proceedings, that the parties to these proceedings consent to the orders being made in those proceedings and that the parties to those proceedings consent to the orders being made in these proceedings;

(e)   That the parties to these proceedings, agree to the terms of the orders being made in the associated proceedings concerning the manner in which the provision and costs amounts in each of the proceedings are to be paid.

(6) Order, pursuant to s 31 of the Family Provision Act 1982, that the release by the respondent of his rights to apply for any further family provision order out of the whole or any part of the estate or notional estate of Kim Yum Bong Seeto be approved.

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Decision last updated: 01 September 2014