Thurlow v Thurlow - [2015] NSWSC 1323

Supreme Court

New South Wales

Case Name:	Thurlow v Thurlow
Medium Neutral Citation:	[2015] NSWSC 1323
Hearing Date(s):	3 September 2015
Decision Date:	3 September 2015
Jurisdiction:	Equity
Before:	Hallen J
Decision:	(a) Grants leave to the Defendant/applicant to amend the notice of motion filed 10 June 2015 by substituting the reference to UCPR rule 13.1 with a reference to UCPR rule 13.4. (b) Orders the Plaintiff’s proceedings be dismissed generally. (c) Orders that the Plaintiff pay the Defendant’s costs of the proceedings, including the costs of the notice of motion filed 10 June 2015. (d) Directs that any notice of motion and affidavits in support of an application for a legal practitioner, or legal practitioners, to bear the costs of the proceedings or of the notice of motion filed 10 June 2015 be served by 4:00 p.m. on Thursday, 24 September 2015. (e) Directs that any evidence in reply by the legal practitioner or legal practitioners, be served by Thursday, 22 October 2015. (f) Stands the matter over to the list of the Family Provision List Judge on Friday, 19 February 2016.
Catchwords:	SUCCESSION – PRACTICE & PROCEDURE – Claim for family provision order by son of the deceased – No grant of Probate sought by Defendant the named executrix and sole beneficiary of the deceased’s estate – Application for summary dismissal by Defendant – UCPR rule 13.4 – Whether there is any property that arguably could form part of the estate or notional estate of the deceased – If not, whether the proceedings are frivolous or vexatious – No assertion made by Plaintiff and supported by evidence that real property of which Defendant is, currently, and was for many decades, the registered proprietor, held by her in whole or in part on trust for the deceased – Other property held by company which was deregistered about two years prior to death of the deceased with negligible assets – Plaintiff unable to point to bases upon which any property held by the Defendant may be designated as the estate or notional estate of the deceased
Legislation Cited:	Civil Procedure Act 2005 (NSW) Succession Act 2006 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 Hitchcock v Pratt [2010] NSWSC 1508 Ren v Jiang [2014] NSWCA 388 Yesilhat v Calokerinos [2015] NSWSC 1028
Texts Cited:	LexisNexis Butterworths, Ritchie’s Uniform Civil Procedure NSW, vol 1 (at 96) [13.4.15]
Category:	Procedural and other rulings
Parties:	William Lawrence Thurlow (Plaintiff) Lorraine Joyce Thurlow (Defendant)
Representation:	Counsel: Mr T Flaherty (Plaintiff/Respondent) Mr A M Gruzman (Defendant/Applicant) Solicitors: P.M.Lee & Co (Plaintiff/Respondent) Mark Evans Solicitors (Defendant/Applicant)
File Number(s):	2015/142432

JUDGMENT – EX TEMPORE (REVISED)

HIS HONOUR: In this matter, the Plaintiff, William Lawrence Thurlow, who is the son of Harold William Thurlow (“the deceased”) commenced proceedings, by Summons filed on 13 May 2015, for provision out of the estate or notional estate of the deceased. In addition he sought costs of the proceedings.
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 Thurlow v Thurlow

Details

AGLC: Thurlow v Thurlow [2015] NSWSC 1323
Case: [2015] NSWSC 1323
Decision Date: 3 September 2015

CaseChat Overview and Summary

The parties involved in the case were the son of the deceased, who was the plaintiff, and the named executrix and sole beneficiary of the deceased's estate, who was the defendant. The dispute centered around a claim for a family provision order by the plaintiff, who sought a share of his deceased father's estate. The defendant, however, had not sought a grant of probate and applied for a summary dismissal of the proceedings under UCPR rule 13.4. The court was required to determine whether there was any property that could arguably form part of the deceased's estate or notional estate. If not, the court had to decide if the proceedings were frivolous or vexatious.

The court found that the plaintiff had not made any assertions supported by evidence that the real property, of which the defendant was the registered proprietor, was held by her in whole or in part on trust for the deceased. Additionally, the other property held by a company that was deregistered two years before the death of the deceased had negligible assets. The plaintiff was unable to provide a basis for designating any property held by the defendant as the estate or notional estate of the deceased. The court concluded that there was no property that could arguably form part of the estate or notional estate of the deceased.

Based on the findings, the court granted the defendant's application for summary dismissal of the proceedings. The court held that the proceedings were frivolous or vexatious as the plaintiff had not provided any evidence to support his claim for a family provision order. As a result, the plaintiff's claim was dismissed with costs.

Orders