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Stone v Stone

Stone v Stone

Case [2019] NSWSC 233 8 March 2019

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Supreme Court

New South Wales

Medium Neutral Citation: Gail Patricia Stone v Michael John Stone [2019] NSWSC 233
Hearing dates: 11, 12, 13 February 2019
Decision date: 08 March 2019
Jurisdiction: Equity - Family Provision List
Before: Hammerschlag J
Decision:
Summons dismissed

Catchwords: SUCCESSION – FAMILY PROVISION – Succession Act 2006 (NSW) ss 59(1), 59(2) and 60 – necessity for applicant to make full and frank disclosure of her financial and material circumstances – where applicant deliberately fails to make that disclosure – application to reopen to adduce evidence deliberately not led earlier – application to reopen refused – HELD: proceedings dismissed.
Legislation Cited: Civil Procedure Act 2005 (NSW)
Conveyancing Act 1919 (NSW)
Evidence Act 1995 (NSW)
Family Provision Act 1982 (NSW)
Succession Act 2006 (NSW)
Cases Cited: Blair v Curran (1939) 62 CLR 464
Cringle v Cringle [2018] NSWSC 1558
DJ Singh v DH Singh and Others [2018] NSWCA 30
Hughes v National Trustees (1979) 143 CLR 134
Srekovic v Srekovic [2018] NSWSC 1597
Stone v Stone [2001] NSWSC 138
Stone v Stone [2014] NSWSC 1655
Tomlinson v Ramsey Food Processing (2015) 256 CLR 507
White v Overland [2001] FCA 1333
Category: Principal judgment
Parties: Gail Patricia Stone - Plaintiff
Michael John Stone - Defendant
Representation:
Counsel:
G. Waugh SC - Plaintiff
J.E. Brown - Defendant
Solicitors:
Byrnes Lawyers - Plaintiff

File Number(s): 2017/272489

Judgment

Introduction

HIS HONOUR: This is a fight between siblings about whether a family provision order under Chapter 3 of the Succession Act 2006 (NSW) (the Act) should be made in relation to the estate of their late mother. It comes some 20 years after a fight they had about the estate of their late father.
References below to sections are, unless the context indicates to the contrary, references to the Act.
The parties’ father, Kevin John Stone, died on 7 August 1999, aged 70 years.
He married their mother, Patricia Floramelle Stone (the deceased), on 5 November 1955. She was born on 1 May 1929 and died on 13 September 2016, aged 87 years.
The plaintiff (Gail), their daughter, was born on 14 February 1957. She is now 62.
The defendant (Michael), their son, was born on 30 June 1958. He is now 60.
Gail seeks a family provision order under s 59 in relation to the estate of the deceased, claiming that the will of the deceased did not make adequate provision for her advancement.
Gail’s claim must be dismissed because she failed to meet the repeatedly stressed requirement that an applicant for such an order must fully and frankly disclose details of her or his financial and material circumstances as they are at or about the time of the hearing. In this case, the failure was material, in breach of directions of the Court and, I find, deliberate.

The act

Section 59(1) provides, relevantly:

The Court may … make a family provision order in relation to the estate of a deceased person, if the Court is satisfied that:
(a) the person in…

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 Stone v Stone

Details

AGLC: Stone v Stone [2019] NSWSC 233
Case: [2019] NSWSC 233
Decision Date: 08 March 2019

CaseChat Overview and Summary

The case of Stone v Stone involved a dispute between family members following the death of a member of the family. The applicant, Stone, sought to challenge the distribution of the deceased's estate under the Succession Act 2006 (NSW). The primary issue before the court was whether the applicant's application to reopen the proceedings to adduce evidence that she deliberately did not lead earlier should be granted. The court was required to determine whether the applicant's failure to make full and frank disclosure of her financial and material circumstances constituted a sufficient ground to reopen the proceedings under s 60 of the Succession Act 2006 (NSW).

The court held that the applicant's failure to make full and frank disclosure of her financial and material circumstances was a significant factor in the original proceedings. However, the court found that this did not constitute a sufficient ground to reopen the proceedings under s 60 of the Succession Act 2006 (NSW). The court held that the applicant had deliberately failed to make the disclosure and that this was not an oversight or an honest mistake. The court found that the applicant had acted in bad faith and that this was a significant factor in determining whether the application to reopen should be granted. The court held that the application to reopen should be refused and that the proceedings should be dismissed.

The court's decision in Stone v Stone highlights the importance of full and frank disclosure in family provision proceedings. The court held that the applicant's deliberate failure to make full and frank disclosure of her financial and material circumstances was a significant factor in determining whether the application to reopen should be granted. The court found that the applicant had acted in bad faith and that this was a significant factor in determining whether the application to reopen should be granted. The court held that the application to reopen should be refused and that the proceedings should be dismissed. This case serves as a cautionary tale for applicants in family provision proceedings to ensure that they make full and frank disclosure of their financial and material circumstances.

Orders