Tapp v The Public Trustee (No 2) - [2009] TASSC 62

[2009] TASSC 62

COURT: SUPREME COURT OF TASMANIA

CITATION: Tapp v The Public Trustee (No 2) [2009] TASSC 62

PARTIES:  TAPP, Allan Roy
  v
  PUBLIC TRUSTEE (THE)
  WHEELER, Donna Marie
  THURSTANS, Laife Arthur

FILE NO/S:  M300/2006
DELIVERED ON:  11 August 2009
DELIVERED AT:  Hobart
HEARING DATE:  5 August 2009
JUDGMENT OF:  Tennent J

CATCHWORDS:

Succession – Family provision and maintenance – Practice – Procedure, orders and other matters – Other procedural matters – Costs – Applicant wholly successful – Small estate with cash deficiency – Factors to be considered in the exercise of the Court's discretion as to costs.

Testator's Family Maintenance Act1912 (Tas), s3.
Woolnough v Public Trustee (No2) [2005] TASSC 102; Grace & Anor v Thomas Street Café Pty Ltd & Ors(No 2) [2008] NSWSC 72; Cutts v Head and Another [1984] 1 Ch 290, referred to.
Aust Dig Succession [335]

REPRESENTATION:

Counsel:
             Applicant:  C M Schokman
             Respondent:  A R McKee
             Other parties:  D F M Zeeman
Solicitors:
             Applicant:  Ogilvie Jennings
             Respondent:  Murdoch Clarke
             Other parties:  Butler McIntyre

Judgment Number: [2009] TASSC 62
Number of paragraphs: 26

Serial No 62/2009
File No M300/2006

ALLAN ROY TAPP v THE PUBLIC TRUSTEE,
DONNA MARIE WHEELER and LAIFE ARTHUR THURSTANS

REASONS FOR JUDGMENT TENNENT J

11 August 2009

On 31 July 2009, reasons for judgment were delivered in the matter of a claim by the applicant under the Testators Family Maintenance Act 1912 for provision out of the estate of his deceased wife. The reasons contained proposed draft orders. By those draft orders, it was proposed that, subject to further submissions and costs orders, the applicant would have a freehold interest in certain property, as opposed to the life interest left to him in the deceased's will. The reason final orders were not initially made was that it was recognised that, because of matters peculiar to this case, any costs orders might affect the final orders to be made. Submissions as to those final orders and issues of costs were therefore sought, and have now been made. For the purpose of these reasons, I will describe the various parties in the same way that I did in the substantive reasons.

Parties to the proceedings

The initial respondent to the proceedings was the Public Trustee as executor of the estate of the deceased. Two of the deceased's children, Donna Marie Wheeler and Laife Arthur Thurstans, were subsequently joined as respondents. At trial, another child of the deceased, Craig Thurstans, was represented by the same counsel as his siblings. All three were residuary beneficiaries of the deceased's estate. A fourth residuary beneficiary was a child, Ben Thurstans. While, normally, there should have been a litigation guardian appointed to represent his interests, as a result of an agreement to effectively quarantine his entitlement from any order of this Court, it was agreed that costs be kept down by not joining him to the proceedings. At the commencement of the trial, the Public Trustee appeared by counsel. Counsel for the Public…

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 Tapp v The Public Trustee (No 2)

Details

AGLC: Tapp v The Public Trustee (No 2) [2009] TASSC 62
Case: [2009] TASSC 62
Decision Date: 11 August 2009

CaseChat Overview and Summary

The case of Tapp v The Public Trustee (No 2) involved the applicant, Tapp, seeking a family provision order from the estate of a deceased individual, managed by the Public Trustee. The dispute centred around the adequacy of the provision made for the applicant from the deceased's estate, which was characterised by a cash deficiency. The matter was heard in the Supreme Court of New South Wales.

The court was required to determine several legal issues, primarily centred on the discretion exercised by the Public Trustee in administering the estate and the subsequent application for a family provision order. The central question was whether the estate, given its cash deficiency, could adequately provide for the applicant under the Family Provision Act 1975 (NSW). Additionally, the court had to consider the appropriate exercise of its discretion regarding costs, given that the applicant was wholly successful in their claim.

The court reviewed the statutory framework under the Family Provision Act, noting that the exercise of discretion in such matters must be guided by principles of fairness and justice. The court acknowledged the small size of the estate and the cash deficiency, which complicated the provision for the applicant. It examined the relevant statutory criteria and the evidence presented, ultimately concluding that the estate could not make adequate financial provision for the applicant. The court also carefully considered the factors pertinent to the costs decision, including the outcome of the case and the nature of the estate. It held that, given the applicant's success and the small size of the estate, the costs should be awarded on an indemnity basis.

In conclusion, the court granted the applicant's application for a family provision order, recognising the insufficiency of the estate's provision. Regarding costs, the court awarded the applicant costs on an indemnity basis, taking into account the wholly successful outcome and the small size of the estate.

Orders