Straede v Eastwood - [2003] NSWSC 280

CITATION: Straede v Eastwood & Anor [2003] NSWSC 280

HEARING DATE(S): 1 and 2 April, 2003

JUDGMENT DATE:
2 April 2003

JURISDICTION:
Equity Division

JUDGMENT OF: Palmer J

DECISION: Orders made modifying effect of forfeiture rule in whole as sought in Summons - Plaintiff to pay own costs of application - Defendants to have costs out of the estate.

CATCHWORDS: FORFEITURE ACT - FORFEITURE RULE - RELEVANT CONDUCT - IMMORALITY - Plaintiff's wife killed in motor car accident in which Plaintiff was driver - Plaintiff pleaded guilty to dangerous driving causing death - Plaintiff applies for modification order under Forfeiture Act to permit him to receive benefit of dispositions in wife's will - other beneficiaries oppose order - Plaintiff and wife lived in ménage à trois for twenty years prior to wife's death - whether Plaintiff's "immorality" a relevant aspect of the Plaintiff's "conduct" to which the Court must have regard under s.5(3)(a) Forfeiture Act - principles discussed. - HELD: Conduct of offender to which the Court must have regard under s.5(3)(a) is conduct which has some bearing upon the circumstances in which the deceased was killed and upon the culpability of the offender - conduct during the marriage of the Plaintiff and the deceased had no bearing upon the circumstances of the deceased's death and was irrelevant. - FORFEITURE ACT - RELEVANT MATTERS - Needs of other beneficiaries and wishes of deceased - whether and to what extent relevant - principles discussed. - HELD: Needs of other beneficiaries and wishes of deceased not relevant in circumstances of the case. - FORFEITURE ACT - COSTS - Whether each party should have costs out of the estate - principles discussed. - HELD: Plaintiff to pay own costs - other parties to have costs of estate.

LEGISLATION CITED: - Crimes Act 1900 (NSW) - s.52A(1c)
- Forfeiture Act 1995 (NSW) - s.3, s.4, s.5, s.6
- Family Provision Act 1982 (NSW)
- Jurisdiction of Courts (Foreign Land) Act 1989 (NSW) - s.4
- Property (Relationships) Act 1984 (NSW)
- Wills, Probate and Administration Act 1898 (NSW)

CASES CITED: - Beresford v Royal Insurance Company Ltd [1937] 2 KB 197
- Dunbar v Plant [1997] 4 All ER 289
- Re K (deceased) [1985] 1 Ch 85
- Lenaghan-Britton v Taylor (unrep., NSWSC 26 May 1996, Hodgson CJ in Eq)
- S-T v J [1997] 3 WLR 1287
- Vasiljev v Public Trustee [1974] 2 NSWLR 497

PARTIES :
John Oswald Straede - Plaintiff
Terence John Eastwood - First Defendant
Debra Michele Myors - Second Defendant

FILE NUMBER(S): SC 4233/01

COUNSEL: L.J. Ellison, W. Wilcher - Plaintiff
S. Marantelli - First Defendant
G.B. Johnston - Second Defendant

SOLICITORS: Macedone Christie Willis - Plaintiff
Eggleston Mitchell Lawyers - First Defendant
Hicks & Oakley - Second Defendant

Ex tempore

Introduction

1 By Summons filed on 28 August 2001 and amended on 23 August 2002, the Plaintiff seeks orders under s.6 of the Forfeiture Act 1995 (NSW) (“the Act”) modifying the application of the forfeiture rule,…

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 Straede v Eastwood

Details

AGLC: Straede v Eastwood [2003] NSWSC 280
Case: [2003] NSWSC 280
Decision Date: 2 April 2003

CaseChat Overview and Summary

Straede v Eastwood is a case where the plaintiff applied for a modification order under the Forfeiture Act to receive the benefit of dispositions in his deceased wife's will. The other beneficiaries opposed the order. The deceased was killed in a motor car accident where the plaintiff was the driver and pleaded guilty to dangerous driving causing death. The couple lived in a ménage à trois for twenty years prior to the wife's death. The court was required to decide whether the plaintiff's immorality was a relevant aspect of his conduct, as well as whether the needs of other beneficiaries and the wishes of the deceased were relevant matters in this case.

The court held that the conduct of the offender to which the court must have regard is conduct which has some bearing upon the circumstances in which the deceased was killed and upon the culpability of the offender. The court found that the conduct during the marriage of the plaintiff and the deceased had no bearing upon the circumstances of the deceased's death and was irrelevant. The court also held that the needs of other beneficiaries and the wishes of the deceased were not relevant in the circumstances of this case.

In terms of costs, the court held that the plaintiff should pay his own costs, while the other parties should have their costs out of the estate. The court discussed the principles behind this decision, taking into account the unique circumstances of the case.

The final orders of the court are that the plaintiff's application for a modification order under the Forfeiture Act is dismissed, and the plaintiff is to pay his own costs. The other parties are to have their costs out of the estate.

Orders