Thyssen v Pottenger - [2003] NSWSC 787

CITATION: Thyssen v Pottenger [2003] NSWSC 787

HEARING DATE(S): 14,15 July 2003

JUDGMENT DATE:
27 August 2003

JURISDICTION:
Equity Division

JUDGMENT OF: Master McLaughlin

DECISION: (1) I order that the claim of the Plaintiff Natalie Veronica Thyssen be dismissed.; (2) I order that the Plaintiff pay the costs of the Defendant, such costs to be on the party and party basis.; (3) I order that the Defendant be entitled to recoup from the estate of the late Nicolaas Jacob Marker ("the Deceased") the difference between the foregoing costs which he may recover from the Plaintiff and the costs of the Defendant on the indemnity basis.; (4) The exhibits may be returned.

CATCHWORDS: Succession - Family Provision - Claim by former wife - Plaintiff and Deceased were divorced in 1965 - Plaintiff subsequently married her present husband, by whom she has three children - Financial and material circusmtances of Plaintiff - Obligation of Plaintiff to place before the Court as fully and as frankly as possible all available details - Whether Plaintiff has established relevant need - Failure of Plaintiff to enforce maintenance and costs orders against Deceased - Factors which warrant the making of the application - Competing claims of beneficiaries.

LEGISLATION CITED: Family Provision Act 1982

CASES CITED: O'Shaughnessy v Mantle (1986) 7 NSWLR 142

PARTIES :
Natalie Veronica Thyssen (First Plaintiff)
John George Thyssen (Second Plaintiff)
Thomas Alexander Pottenger (First Defendant)
Rhoderick Gavin Ramsay McGhee (Second Defendant)

FILE NUMBER(S): SC 1855/02

COUNSEL: S. Goodman (Plaintiffs)
M. Gorrick (Defendants)

SOLICITORS: Snelgrove & Partners, Solicitors (Plaintiffs)
Pottenger & McGhee (Defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

MASTER McLAUGHLIN

Wednesday, 27 August 2003

1855 of 2002 NATALIE VERONICA THYSSEN -v- THOMAS ALEXANDER POTTENGER

JUDGMENT

1 MASTER: These are proceedings under the Family Provision Act 1982.

2 By summons filed on 12 March 2002 Natalie Veronica Thyssen and John George Thyssen claim an order for provision for their maintenance and advancement in life out of the estate and/or notional estate of the late Nicolaas Jacob Marker (to whom I shall refer as “the Deceased”).

3 The First Plaintiff is the former wife of the Deceased and the Second Plaintiff is their son.

4 The Deceased died on 6 February 2001. He left a will dated 3 February 1994, probate whereof was on 11 April 2001 granted to Thomas Alexander Pottenger and Rhoderick Gavin Ramsey McGhee, the executors named in such will (who are the Defendants to the present proceedings).

5 By that will the Deceased provided that (subject to the income from the business conducted by him being given, pending the sale of the business, to his daughter, Suzanne Julie Allen) his entire estate be divided into five equal parts, one part being for his son Steven Martien Marker, two parts for his daughter Suzanne Julie Allen and two parts for his daughter Sandra Louise Roberts.

6 No provision was made by that will either for the Deceased’s former wife or for their son.

7 The inventory…

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 Thyssen v Pottenger

Details

AGLC: Thyssen v Pottenger [2003] NSWSC 787
Case: [2003] NSWSC 787
Decision Date: 27 August 2003

CaseChat Overview and Summary

Thyssen v Pottenger involved a claim for family provision under the Succession Act 2006 (NSW) brought by the former wife of the deceased. The plaintiff sought financial provision from the deceased's estate, which was being administered by the defendant. The plaintiff and deceased had been divorced in 1965, and the plaintiff had since remarried and had three children with her current husband. The dispute centred on whether the plaintiff had established a relevant need for maintenance from the deceased's estate and whether the court should make an order for financial provision.

The court had to decide whether the plaintiff had adequately demonstrated her need for financial support from the estate, considering her current financial circumstances and her obligation to present all available details to the court. Another key issue was whether the plaintiff's failure to enforce maintenance and costs orders against the deceased should impact the court's decision. The court also needed to weigh the factors warranting the making of the application against the competing claims of other beneficiaries of the estate.

The court found that the plaintiff had not sufficiently established a relevant need for maintenance from the estate. It was noted that the plaintiff had not enforced maintenance and costs orders against the deceased, which was a significant factor in the court's decision. The court balanced the plaintiff's need against the competing claims of other beneficiaries and concluded that the plaintiff had not met the threshold for making a successful claim. The court dismissed the application for family provision.

Orders