Steiner v Strang (No 2) - [2017] NSWSC 891

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 155
Texts 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)
Jason Tang (Second Defendant)
Steiner Wilson Webster Pty Ltd (First Respondent)
Wayne Porter Webster (Junior) (Second Respondent)
Lesley Margaret Webster (Third Respondent)
Kelly Lee Midgley (Fourth Respondent)
Representation:
Counsel:
M Condon SC (Applicant )
D L Williams SC and B Phillips (First, Second, Third and Fourth Respondents)
Solicitors:
Keypoint Law (Applicant)
Sparke Helmore (First, Second, Third and Fourth Respondents)

File Number(s): 2012/185566
Publication restriction: No

EX TEMPORE Judgment

Summary

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.
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.
The respondents to the motion…

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 Steiner v Strang (No 2)

Details

AGLC: Steiner v Strang (No 2) [2017] NSWSC 891
Case: [2017] NSWSC 891
Decision Date: 03 July 2017

CaseChat Overview and Summary

The appeal before the court concerned a claim for family provision under the Succession Act 2006 (NSW). The appellant, Steiner, sought an order for the respondent, Strang, to provide for him. The case was heard in the Supreme Court of New South Wales. The primary judge had made an ancillary order for Strang to provide for Steiner, but not a family provision order as sought. This decision is the subject of appeal.

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