Stevenson v Public Trustee - [2007] NSWSC 1464

CITATION: Stevenson v Public Trustee [2007] NSWSC 1464

HEARING DATE(S): 6 July 2007

JUDGMENT DATE :
14 December 2007

JUDGMENT OF: Associate Justice McLaughlin

DECISION: 6286 of 2005 CRAIG JOHN STEVENSON –v- THE PUBLIC TRUSTEE; 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. 3. I order that the Defendant be entitled to retain from the estate of the late John Cameron Simpson (“the Deceased”) the difference between the costs of the Defendant on the indemnity basis and the foregoing costs which he may recover from the Plaintiff. 4. The exhibits may be returned. ; 1940 of 2006 PETER DAVID STEVENSON –v- THE PUBLIC TRUSTEE ; 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. 3. I order that the Defendant be entitled to retain from the estate of the late John Cameron Simpson (“the Deceased”) the difference between the costs of the Defendant on the indemnity basis and the foregoing costs which he may recover from the Plaintiff. 4. The exhibits may be returned.

CATCHWORDS: SUCCESSION - Family Provision - Intestacy - Claims by two adult sons of a former de facto spouse of Deceased - Whether each Plaintiff has been left without adequate provision for his proper maintenance - Whether there are factors which warrant the making of the applications - Claim by one Plaintiff is out of time - Competing claim of daughter of Deceased, who is entitled to entire estate upon intestacy.

LEGISLATION CITED: Family Provision Act 1982

CASES CITED: Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201
Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 19

PARTIES: Craig John Stevenson (Plaintiff in 6286 of 2005)
Peter David Steveson (Plaintiff in 1940 of 2006)
The Public Trustee (Defendant in each proceeding)

FILE NUMBER(S): SC 6286 of 2005; 1940 of 2006

COUNSEL: Mr L. Ellison SC (Plaintiff in 6286 of 2005)
Mr J. Armfield (Plaintiff in 1940 of 2006)
Mr D. Flaherty (Defendant in each proceeding)

SOLICITORS: Brophy Bridge & Mirow (Plaintiff in 6286 of 2005)
Gianacas Argiris McDonald (Plaintiff in 1940 of 2006)
Anthony Lentini Solicitor for the Public Trustee (Defendant in each proceeding)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ASSOCIATE JUSTICE McLAUGHLIN

Friday, 14 December 2007

6286 of 2005 CRAIG JOHN STEVENSON –v- THE PUBLIC TRUSTEE
1940 of 2006 PETER DAVID STEVENSON –v- THE PUBLIC TRUSTEE

JUDGMENT

1 HIS HONOUR: These are two proceedings under the Family Provision Act 1982.

2 By summons filed on 15 December 2005, Craig John Stevenson claims an order for provision for his maintenance, education and advancement in life out of the estate and/or notional estate of the late John Cameron Simpson (to whom I shall refer as “the Deceased”).

3 By summons filed on 20 March 2006…

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 Stevenson v Public Trustee

Details

AGLC: Stevenson v Public Trustee [2007] NSWSC 1464
Case: [2007] NSWSC 1464
Decision Date: 14 December 2007

CaseChat Overview and Summary

The case of Stevenson v Public Trustee involved two adult sons, the plaintiffs, who sought provision from the estate of their deceased father's former de facto spouse. The deceased, who was the father of the plaintiffs, had passed away intestate, leaving behind an estate that was to be distributed according to the laws of intestacy. The plaintiffs argued that they had not been provided for adequately in the deceased's will and sought to make claims under the Family Provision Act. The Public Trustee, who was the administrator of the estate, was the defendant. The court was tasked with determining whether the plaintiffs were left without adequate provision for their proper maintenance and if there were any factors that warranted the making of the applications.

The primary legal issues before the court were whether the plaintiffs had indeed been left without adequate provision for their maintenance and whether there were any special circumstances that justified their claims under the Family Provision Act. Additionally, the court had to consider the competing claim of the deceased's daughter, who was entitled to the entire estate upon intestacy. Furthermore, the court needed to address the issue of the timeliness of the plaintiffs' claims, as one of them was found to be out of time.

The court examined the relevant statutory criteria for making an application under the Family Provision Act, including the duty of the court to make just and equitable orders for the reasonable financial provision of the applicant. The court also considered the competing claim of the deceased's daughter, who was entitled to the entire estate upon intestacy, and how this affected the plaintiffs' claims. The court determined that one of the plaintiffs' claims was out of time and thus invalid. The court further found that the other plaintiff had not demonstrated that he was left without adequate provision for his maintenance. Given the competing claim of the deceased's daughter, the court decided that there were no special circumstances warranting the making of the applications. Consequently, the court dismissed the plaintiffs' claims.

The final orders of the court were that the claims of both plaintiffs were dismissed, with the court finding that neither plaintiff had been left without adequate provision for their maintenance, and the timeliness of one of the claims was also an issue. The competing claim of the deceased's daughter, who was entitled to the entire estate upon intestacy, further supported the dismissal of the plaintiffs' claims.

Orders