Thompson v Gamble; Gamble v Thompson - [2010] NSWSC 878

CITATION: Thompson v Gamble; Gamble v Thompson [2010] NSWSC 878

HEARING DATE(S): 30/07/10

JUDGMENT DATE :
30 July 2010

JUDGMENT OF: Slattery J at 1

EX TEMPORE JUDGMENT DATE: 30 July 2010

DECISION: 57. In accordance with the orders sought in the Summons in the Estate proceedings the Court advices and directs pursuant to Trustee Act s 63 that the plaintiffs are at liberty to distribute the Estate of the Deceased, Keith Munro Gamble, without making any retention, or provision in respect of any contract of insurance, or reinsurance, underwritten by the deceased in the course of his business as an underwriting member of Lloyd’s of London.
58. The orders I make by consent in the Family Provision Act proceedings in accordance with the short minutes of order are:-
1. Order that, in lieu of the provision made for the Plaintiff in Clause 3(a) of the Will of Keith Munro Gamble (“the Deceased”), the property known as Aquarius Apartment 33A, 4 Old Burleigh Road, Surfers Paradise, Queensland, be transmitted to the Plaintiff absolutely.
2. Order that, pursuant to s. 31 of the Family Provision Act 1982, the release contained in Paragraph 7 of the Deed between the Plaintiff, the Defendants and Anne Therese Church and Mary Louise Low (“the Deed”) dated 17 May, 2010 be approved.
3. Order that the Defendants’ costs, calculated on the indemnity basis, be paid out of the estate of the deceased.
4. Order that the Plaintiff’s costs, calculated on the ordinary basis, be paid out of the estate.
5. The Court notes, otherwise, the terms of the Deed.
6. The parties agree that:
(a) The Plaintiff’s Application filed in these proceedings was made within time; and
(b) The Plaintiff is an eligible person; and
(c) The Plaintiff has served a notice identifying all other eligible persons on the Executors at the time of serving the Summons; and
(d) The Administrator has filed a copy of the Affidavit required by Supreme Court Rules Schedule J.
(e) The Administrators have served notice of the Plaintiff’s Claim on any person who, in the Administrators’ opinion, may be an eligible person.
(f) The Administrators have filed a Notice of Appearance.

CATCHWORDS: EQUITY - trusts and trustees - liability of trustees - deceased name at Lloyd's executors seek advice to permit distribution of estate despite existence of contingent liabilities - HELD - executors may distribute without any retention - Family Provision - approval of release under Family Provision Act s 31.

LEGISLATION CITED: Family Provision Act 1982 ss 7, 31
Insurance Companies Act 1992 UK
Trustee Act, 1925, s 63 ss 60, 63

CATEGORY: Principal judgment

CASES CITED: Chisholm v Gilcrest (1902) 2 SR(NSW) Eq 84
GB Nathan & Co Pty Ltd (in liq), Re (1991) 24 NSWLR 674
Estate L H Hall [1999] NSWSC 1297
In the Matter of the Names of Lloyd's for the 1992 and Prior Years of Account represented by Equitas Limited [2009] EWHC 1595 (Ch)
Re Gross (1949) SASR 55
Re York (deceased); Stone and…

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 Thompson v Gamble; Gamble v Thompson

Details

AGLC: Thompson v Gamble; Gamble v Thompson [2010] NSWSC 878
Case: [2010] NSWSC 878
Decision Date: 30 July 2010

CaseChat Overview and Summary

The proceedings involved a dispute between the parties regarding the distribution of an estate. The plaintiffs, Thompson, sought advice from the executors of the deceased Gamble's estate. The executors were concerned about contingent liabilities that might arise from the estate, which could potentially affect the distribution of the estate. The matter was heard by the court, which was tasked with determining the executors' liability regarding the distribution of the estate despite the existence of these contingent liabilities.

The court was required to decide whether the executors could distribute the estate without retaining any funds to cover potential contingent liabilities. Additionally, the court had to determine whether the release of the contingent liabilities, as proposed by the plaintiffs, was in line with the Family Provision Act s 31. This provision of the Act allows the court to approve a release of the contingent liabilities, which would enable the executors to distribute the estate without any retention.

The court held that the executors could distribute the estate without retaining any funds for the contingent liabilities. The court found that the potential liabilities were not significant enough to warrant a retention of funds. Furthermore, the court approved the release of the contingent liabilities under the Family Provision Act s 31. The court found that the release was in the best interests of the estate and the beneficiaries. The court's decision allowed the executors to distribute the estate without any retention, and the release of the contingent liabilities was approved under the Family Provision Act s 31.

Orders