Thomas v Jackson - [2002] NSWSC 660

CITATION: Thomas v Jackson [2002] NSWSC 660

CURRENT JURISDICTION: Equity Division

FILE NUMBER(S): SC 3803 of 1999

HEARING DATE(S): 24/06/2002

JUDGMENT DATE: 26 July 2002

PARTIES :

Aldred David Thomas v Ian Jackson (Executor of the Estate of Janice Ranson)

JUDGMENT OF: Master Macready at 1

COUNSEL : Mr Ramos for plaintiff
Mr Hodgekiss for defendant

SOLICITORS: Aston Reif Lawyers Pty Ltd for plaintiff
George Khoury & Co for defendant

CATCHWORDS: Family Provision. Application by a bankrupt. Bankruptcy still in force at date of trial. Any award would only be for the benefit of the bankrupt's creditors and not the bankrupt. Application dismissed.

DECISION: Paragraph 32

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Master Macready

Friday 26 July 2002

3803/1999 Aldred David Thomas v Ian Jackson (Executor of the Estate of Janice Ranson)

JUDGMENT

1 Master: This is an application under the Family Provision Act in respect of the estate of the late Janice Patricia Ranson who died on 8 August 1998 aged 58. The deceased was survived by the plaintiff her former husband and also by her three daughters from her first marriage.

The deceased’s will.

2 The deceased made her last will on 31 October 1997. Under that will she appointed the defendant as executor and trustee and gave the whole of her estate to her three daughters Sarah, Jane and Kate.

The estate of the deceased.

3 The deceased left an estate which comprised a house and investments. The house has been realised and there are at present moneys on deposit and shares held by the executor having a total value of $710,294. There is an unknown liability to the Australian Taxation Office and there is an outstanding claim which has been brought claiming contributions under a guarantee signed by the deceased. The amount claimed in the proceedings which were commenced against the executor on 6 September 1999 amount to $541,836.27. There is no information that has been placed before the court that would any way indicate what is the present status of this action and what will be its likely result. The only information that the executor gave evidence of in relation to this was that the matter was not progressing pending the determination of this claim.

4 The outstanding costs of the defendant have not yet been paid of $30,000 and the plaintiff's costs are estimated at $28,000.

History of the family

5 The deceased was born on 26 July 1940. She was married to her first husband Mr Ranson on 31 January 1961. They had three children Sarah Anne Ranson born 20 Fairbury 1964, Jane Louise Ransom-Smith, born 28 September 1964 and Kate Elisabeth Ranson born 9 September 1967. The deceased's husband was for a time a merchant seaman and in due course the family lived in Queensland for some years. The deceased and her first husband were divorced in 1976 and thereafter the deceased and her children returned to live in Sydney.

6 The deceased worked 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 Thomas v Jackson

Details

AGLC: Thomas v Jackson [2002] NSWSC 660
Case: [2002] NSWSC 660
Decision Date: 26 July 2002

CaseChat Overview and Summary

Thomas sought an order under the Family Provision Act, claiming entitlement to reasonable provision from the estate of their deceased father, Jackson. The court was tasked with determining whether the application could proceed given that Jackson was still in the process of bankruptcy at the time of the trial. Any financial award made would, by law, benefit Jackson's creditors rather than Jackson themselves. The court had to consider the implications of this bankruptcy status on Thomas's application and whether it precluded any possible relief under the Act.

The central legal issue was whether the ongoing bankruptcy of Jackson at the time of the hearing permitted Thomas's application for family provision to proceed. The court considered whether the nature of the bankruptcy meant that any award made would not serve Thomas's claim but rather the creditors of the bankrupt estate. Additionally, the court needed to assess if the Act's provisions could be applied in such a way as to avoid the creditors benefiting from the potential award.

The court found that the ongoing bankruptcy of Jackson meant that any award made would not be for the benefit of Thomas but instead for Jackson's creditors. Consequently, the court concluded that Thomas's application could not proceed as it would not result in provision for Thomas but rather for the creditors. The court dismissed the application on these grounds, emphasising that the Act's purpose was to provide for family members and not to benefit creditors indirectly.

The final order was that Thomas's application was dismissed. The court explicitly stated that any award made in this case would only serve to benefit Jackson's creditors, which was not the intent of the Family Provision Act. Thus, Thomas's application was not successful as it did not align with the Act's purpose of providing for family members.

Orders