Stern v Engel - [2001] NSWSC 1025

CITATION: Stern v Engel [2001] NSWSC 1025

FILE NUMBER(S): SC 1146 of 2001

HEARING DATE(S): 1 November 2001

JUDGMENT DATE:
14 November 2001

PARTIES :

Harry Phillip Stern (Plaintiff)
Cheryl Rae Engel (Defendant)

JUDGMENT OF: Master McLaughlin

COUNSEL : R. Cameron (Plaintiff)
P. O'Loughlin (Defendant)

SOLICITORS: Dennis & Company, Solicitors (Plaintiff)
Mackenzie Russell & Co, Solicitors & Notaries (Defendant)

CATCHWORDS: Family provision - Claim by adult son - Applicant must place before the Court as fully and as frankly as possible details of his financial and material circumstances - Whether applicant has been left without adequate provision for his proper maintenance - Applicant must establish his own case on its own merits - Remedy of his financial and material circumstances reposes solely with applicant

LEGISLATION CITED: Family Provision Act 1982

CASES CITED: Bosch v Perpetual Trustee Company Ltd (1938) AC 463
Goodman v Windeyer (1980) 14 CLR 431
Hunter v Hunter (1987) 8 NSWLR 573
Singer v Berghouse (1994) 181 CLR 201
White v Barron (1980) 144 CLR 431

DECISION: (1). I order that the summons be dismissed. (2). I order that the Plaintiff pay the costs of the Defendant, such costs to be on the party and party basis.

OF NEW SOUTH WALES
EQUITY DIVISION

1146/01

Master McLaughlin

Wednesday, 14 November 2001

Harry Phillip Stern v Cheryl Rae Engel

Draft Judgment

: These are proceedings under the Family Provision Act 1982.

2 By summons filed on 23 February 2001 the Plaintiff Harry Phillip Stern claims an order that provision be made for his maintenance and advancement in life out of the estate and/or notional estate of his late father, Manny [sic] Stern (to whom I shall refer as “the Deceased”), and an order designating as notional estate certain property situate at and known as 25/22 Penkivil Street, Bondi.

3 The Deceased (whose correct name, at least according to his will and to the probate granted thereof, was Mannie Stern) died, aged 84, on 26 August 1999. He left a will dated 5 July 1994, probate whereof was on 30 March 2000 granted to Cheryl Rae Engel, the executor named in such will (who is the Defendant to the present proceedings).

4 The Deceased was survived by his two children, being the Plaintiff (who was born on 1 July 1944, and is now aged 57) and the Defendant (who was born on 23 February 1949, and is now aged 52).

5 The Deceased, in the events which have happened, gave the entirety of his estate (after payment of debts, funeral expenses, headstone and other testamentary expenses) to the Defendant absolutely.

6 The significant asset in the estate of the Deceased was a home unit situate at and known as Unit 25, 22 Penkivil Street, Bondi (that being the property in respect whereof the Plaintiff by the summons seeks a declaration as notional estate). To that home unit there was attributed in the Inventory of Property an estimated value of $350,000. The other assets (which included a motor…

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 Stern v Engel

Details

AGLC: Stern v Engel [2001] NSWSC 1025
Case: [2001] NSWSC 1025
Decision Date: 14 November 2001

CaseChat Overview and Summary

In the Supreme Court of Queensland, Stern brought a claim against Engel, seeking family provision under the Family Provision Act 1969. Stern, the applicant, sought to challenge the will of his late father, asserting that he had not been left with adequate provision for his proper maintenance. The central legal issues revolved around whether Stern had adequately disclosed his financial circumstances and whether he had established his case on its own merits. The court needed to determine if Stern had been left without adequate provision for his proper maintenance and whether his claim should be granted.

The court addressed the applicant's duty to place before the court all relevant details of his financial and material circumstances fully and frankly. It emphasised that the remedy of the applicant's financial and material circumstances was solely within his control. The court scrutinised Stern's disclosure of his financial situation and evaluated whether it was comprehensive enough to form the basis of a fair assessment of his needs. The court also considered whether Stern's claim was substantiated on its own merits, independent of any comparative analysis with other potential beneficiaries.

Stern's disclosure of his financial circumstances was found to be deficient, lacking full and frank disclosure. The court held that the applicant had not placed before it all relevant details of his financial and material circumstances. As a result, the court determined that Stern had not established his case on its own merits. Consequently, the court dismissed Stern's claim, finding that he had not demonstrated that he had been left without adequate provision for his proper maintenance. The court emphasised that each applicant must prove their own case independently of other potential beneficiaries.

Orders