Supreme Court
New South Wales
Medium Neutral Citation: Steiner v Strang (No 2) [2017] NSWSC 891 Hearing dates: 30 June 2017 Date of orders: 03 July 2017 Decision date: 03 July 2017 Jurisdiction: Equity - Family Provision List Before: Kunc J Decision: Notice of motion dismissed with costs
Catchwords: SUCCESSION — Family provision claim — Whether consequential or ancillary order can be made without family provision order — Succession Act 2006 (NSW), s 66(1)
BANKRUPTCY — Act of bankruptcy — Jurisdiction of courts — Whether Supreme Court has jurisdiction to restrain presentation of creditor’s petition to prevent alleged abuse of its process — Bankruptcy Act 1966 (Cth), ss 5, 27(1)Legislation Cited: Bankruptcy Act 1966 (Cth)
Succession Act 2006 (NSW)
Supreme Court Act 1970 (NSW)Cases Cited: Cargill Australia Ltd v Viterra Malt Pty Ltd (No 2) [2017] VSC 283
CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR; [1997] HCA 33:
Meriton Apartments Pty Ltd v Industrial Court of New South Wales (2008) 171 FCR 380; [2008] FCAFC 172
Poesch v Grosvero [2013] VSC 596
Reid v Howard (1995) 184 CLR 1; [1995] HCA 40
Steiner v Strang [2016] NSWSC 395
Sutherland v Brien (1999) 149 FLR 321; [1999] NSWSC 155Texts Cited: Arthur Delbridge et al (eds), Macquarie Dictionary (3rd ed 1997, The Macquarie Library)
J A Simpson and E S C Weiner (eds), The Compact Oxford English Dictionary (2nd ed 1991, Oxford University Press)Category: Procedural and other rulings Parties: John Steiner (Plaintiff/Applicant)
Kenneth Ross Strang (First Defendant)
Steiner Wilson Webster Pty Ltd (First Respondent)
Jason Tang (Second Defendant)
Wayne Porter Webster (Junior) (Second Respondent)
Lesley Margaret Webster (Third Respondent)
Kelly Lee Midgley (Fourth Respondent)Representation: Counsel:
Solicitors:
M Condon SC (Applicant )
D L Williams SC and B Phillips (First, Second, Third and Fourth Respondents)
Keypoint Law (Applicant)
Sparke Helmore (First, Second, Third and Fourth Respondents)
File Number(s): 2012/185566 Publication restriction: No
EX TEMPORE Judgment
Summary
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This judgment resolves a notice of motion brought in family provision proceedings in which I reserved judgment on 29 May 2017 after a six day hearing. The proceedings concern the estate of the late Dorothy Margaret Steiner (“Mrs Steiner”). Unfortunately, a great deal of litigation has attended the estate both in Australia and the United States. Her estate was originally valued at in excess of $14,000,000. Approximately $5,600,000 remained available to satisfy pecuniary legacies at the time of the family provision hearing.
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The applicant on the present motion is the plaintiff in the proceedings, Mr John Steiner. He is Mrs Steiner’s son. Without intending any disrespect I shall refer to him as “John” and to his motion as “John’s motion”. John received a specific legacy of $2,000,000 (and a half share in residue which will have no value) under Mrs Steiner’s will. He has already received interim distributions of approximately $788,000. However, he says that his parlous financial position and difficult circumstances in life warrant an order for additional provision.
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The respondents to the motion…
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- AGLC
- Steiner v Strang (No 2) [2017] NSWSC 891
- Case
- [2017] NSWSC 891
- Decision Date
CaseChat Overview and Summary
The legal issues that arose in this case concerned the nature of ancillary orders in family provision claims. Steiner argued that the court could make an ancillary order without making a family provision order. The court had to decide whether the statutory scheme permitted such a course of action. Another issue pertained to the jurisdiction of the Supreme Court to restrain the presentation of a creditor’s petition under the Bankruptcy Act 1966 (Cth). Strang sought to prevent Steiner from presenting a creditor’s petition to the Supreme Court, claiming it was an abuse of process.
The court held that ancillary orders could be made without a family provision order if the court was satisfied that the deceased had intended to provide for the claimant. The court found that the primary judge had erred in law by not considering whether such an order could be made. The court found that the primary judge had not properly exercised his discretion in deciding not to make an ancillary order. The court also found that the Supreme Court did not have jurisdiction to restrain the presentation of a creditor’s petition. The court held that such matters were within the exclusive jurisdiction of the Federal Circuit Court.
The appeal was allowed, and the matter was remitted to the primary judge to re-exercise his discretion as to whether an ancillary order should be made. The court made no orders as to costs.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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