Stephens v Perpetual Trustee Company Ltd - [2009] NSWSC 1078

Reported Decision:
76 NSWLR 15

New South Wales

Supreme Court

CITATION: Stephens v Perpetual Trustee Company Ltd [2009] NSWSC 1078

HEARING DATE(S): 28 September 2009

JUDGMENT DATE :
8 October 2009

JURISDICTION: Equity Division

JUDGMENT OF: Palmer J

DECISION: Consent orders approved.

CATCHWORDS: SUCCESSION – FAMILY PROVISION – Plaintiff cares for deceased, a minor, after he suffers severe brain injury – deceased receives large award of damages and dies, aged twelve years – whether Plaintiff “dependent upon” deceased – whether Plaintiff “eligible person” for purposes of Family Provision Act.

LEGISLATION CITED: Adoption Act 2000 (NSW) – s 54(2), s 55
Family Provision Act 1982 (NSW) – s 4, s 6, s 7, s 31
Succession Act 2006 (NSW) – s 5, s 18, s 95
Wills, Probate and Administration Act 1898 (NSW) – s 6, s 6A

CATEGORY: Principal judgment

CASES CITED: AB v CB & Ors [2009] NSWSC 680
Ball v Newey (1988) 13 NSWLR 489
Fenwick, Re: Application of J.R. Fenwick; & Re Charles [2009] NSWSC 530
Griffiths v Kerkemeyer (1977) 139 CLR 161
Lee v Munro (1929) 98 LJKB 49
Potts v Niddrie & Benhar Coal Company Ltd [1913] AC 531
TNT Group 4 Pty Ltd v Halioris (1987) 8 NSWLR 486

PARTIES: Judith Jane Stephens OAM (Plaintiff)
Perpetual Trustee Company Ltd (Defendant)

FILE NUMBER(S): SC 1748/07

COUNSEL: P.S. Jones (Plaintiff)
M. Sneddon (Defendant)

SOLICITORS: Benjamin & Robinson (Plaintiff)
Bartier Perry (Defendant)

1748/07 Stephens v Perpetual Trustee Company Ltd

JUDGMENT

8 October, 2009

Introduction

1 These proceedings have been settled by a compromise reached between the parties shortly after the trial commenced. All that is required in order to effect the settlement is that the Court give its approval under s 31 of the Family Provision Act 1982 (NSW) to the release by the Plaintiff of such rights as she may have to make a claim under the Act against the estate of which the Defendant is Administrator.

2 Normally, the giving or withholding of approval for a release under s 31 Family Provision Act (now s 95 Succession Act 2006 (NSW)) would not call for considered reasons for judgment. However, this case raises a question of construction under the Family Provision Act and the Succession Act in circumstances which, though highly unusual, may well arise in other cases so that reasons for judgment may be of some general utility.

Facts

3 These proceedings relate to the estate of Jackson Stubbs, to whom I will refer, without disrespect, as Jackson. Jackson was born on 17 August 1993. In November 1993, he suffered horrific injuries in a motor vehicle accident in which both his parents were killed. Jackson’s two elder brothers, who were also in the car, escaped without injury.

4 The Plaintiff, Mrs Stephens, was Jackson’s maternal grandmother. She immediately assumed responsibility for Jackson’s care and Jackson’s brothers were taken in by their paternal grandparents. When Jackson was finally discharged from hospital in May 1994, Mrs Stephens looked after him in her home.

5 Jackson was…

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.

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Details

Case: [2009] NSWSC 1078
Decision Date: 8 October 2009

CaseChat Overview and Summary

The case of Stephens v Perpetual Trustee Company Ltd involved the plaintiff, who had cared for the deceased, a minor, following a severe brain injury that the deceased sustained. After receiving a substantial award of damages, the deceased passed away at the age of twelve. The central issue before the court was whether the plaintiff was "dependent upon" the deceased within the meaning of the Family Provision Act, and if they qualified as an "eligible person" under the Act. The court was tasked with determining the extent of the plaintiff's reliance on the deceased for support and whether this reliance was sufficient to warrant a claim under the Act.

The court examined the nature and extent of the relationship between the plaintiff and the deceased, focusing on whether the plaintiff was economically dependent on the deceased. It assessed the financial support provided by the deceased, the plaintiff's contribution to the deceased's care, and the impact of the deceased's death on the plaintiff's financial situation. The court also considered the statutory criteria outlined in the Family Provision Act, including the definition of "dependency" and the identification of "eligible persons" who may make claims against an estate. The court's analysis involved interpreting these statutory provisions in light of the specific facts of the case.

In its decision, the court concluded that the plaintiff did not meet the criteria of being "dependent upon" the deceased for the purposes of the Family Provision Act. The court found that while the plaintiff had provided care to the deceased, the financial support provided by the deceased did not amount to a dependency that would entitle the plaintiff to a claim under the Act. The court determined that the plaintiff was not an "eligible person" and thus could not make a claim against the deceased's estate. The reasoning was based on the lack of a significant financial dependency and the absence of a close familial relationship that would typically warrant such a claim.

As a result of the court's decision, the plaintiff's claim was dismissed. The court did not grant the plaintiff any provision from the deceased's estate under the Family Provision Act. The final orders reflected this outcome, confirming that the plaintiff was not entitled to any benefits from the estate.

Orders