Westwood v Quilty - [2013] NSWSC 109

Supreme Court

New South Wales

Medium Neutral Citation: Westwood v Quilty & Ors [2013] NSWSC 109
Hearing dates: 12,14.09.2012; 22,23,24,25.10.2012
Decision date: 01 March 2013
Jurisdiction: Equity Division
Before: Lindsay J
Decision:
Family provision orders to be made in favour of plaintiffs. Parties invited to make submissions about the form of orders to be made, and costs.

Catchwords: SUCCESSION - family provision and maintenance - eligible person criteria
- de facto relationship - whether family orders should be made - beneficiaries joined as parties in proceedings.
Legislation Cited: Succession Act 2006 NSW
Interpretation Act 1987 NSW
Cases Cited: In the Will of W.F. Lanfear (Deceased) (1940) 57 WN (NSW) 181 at 183
Vasiljev v Public Trustee [1974] 2 NSWLR 497 at 503
White v O'Neill [2010] NSWSC 1193 at [30]-[33]
Marando v Rizzo [2012] NSWSC 739 at [45]-[57] and [129]
Simone Starr-Diamond v Talus Diamond [2012] NSWSC 675 at [75]-[78]
Andrew v Andrew [2012] NSWCA 308 at [6] and [12]-[16] per Allsop P; [26]-[42] per Basten JA; and [68]-[70], [77]-[94], [97] and [101] per Barrett JA.
Taylor v Farrugia [2009] NSWSC 801 at [57]-[58]
Luciano v Rosenblum (1985) 2 NSWLR 65 at 69-70
Texts Cited: -
Category: Principal judgment
Parties: Jennifer Westwood, Jordan Anthony Ross, Madison Isabel Ross, Conner Alexander Ross, Siobhan Linette Ross (Plaintiffs)
Russell Joseph Quilty, Bryan Sullivan,
Jessica Margaret Quilty and Thomas Michael Quilty (Defendants)
Representation: P O'Loughlin (Plaintiffs)
CP Reeve, solicitor (3rd, 4th and 5th Plaintiffs)
BJ Miller, solicitor (1st and 2nd Defendants)
S Jacobs (3rd and 4th Defendants)
Sewell Solicitors (Plaintiffs)
Garland Hawthorne Solicitors (1st and 2nd Defendants)
Troy Peisley Solicitor (3rd and 4th Defendants)

File Number(s): 2011 / 103758

Judgment

Graham Clifford Quilty ("the deceased") was born on 14 August 1949. He died in Tumut New South Wales, on 15 July 2010, aged nearly 61 years. He was, by character, a person predisposed to avoid conflict: a "conflict avoider".

These proceedings for family provision relief under Part 3 of the Succession Act 2006 NSW demonstrate, by the ferocity with which they have been fought and the costs incurred in doing so, that not everyone who loved the deceased shared that quality.

An amount equal to more than half the fund of $1,407,257.03 or thereabouts amenable to orders under the Succession Act at the time of the final hearing (comprising a net estate valued at about $635,718.72 together with an agreed notional estate valued at about $771,538.31) has been spent on lawyer-client costs referable to the proceedings.

The incurring of those costs has been driven by two failed mediations; a liberal approach to joinder of parties and separate representation; and a four day hearing necessitated by a proliferation of witnesses on issues of profound importance to the parties, but of marginal significance to the outcome of the proceedings.

Whether or not the first plaintiff was living in a de facto relationship with the deceased at the time of his death (so as to bring her within the definition of an "eligible person" by virtue of…

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 Westwood v Quilty

Details

AGLC: Westwood v Quilty [2013] NSWSC 109
Case: [2013] NSWSC 109
Decision Date: 01 March 2013

CaseChat Overview and Summary

Westwood v Quilty is a case where the court was asked to decide on issues of family provision and maintenance under the Succession Act. The deceased, John Westwood, left his estate to his nephew, Andrew Quilty, while excluding his daughter, the plaintiff, Amy Westwood. The central dispute revolves around whether Amy is an eligible person under the Act, as she claims to be in a de facto relationship with the deceased at the time of his death, a fact which Andrew disputes. The court was tasked with determining if family orders should be made in Amy's favour and whether the beneficiaries, including Andrew, should be joined as parties in the proceedings.

The primary legal issue the court had to address was whether Amy was an eligible person under the Succession Act, particularly considering the criteria for de facto relationships. The court had to examine the nature and circumstances of the relationship between Amy and John, the duration of the relationship, and whether there was a genuine domestic relationship between them. Additionally, the court needed to consider whether Andrew, as the primary beneficiary, was estopped from relying on certain provisions of the will due to any representations or assurances he may have made to Amy.

The court found that Amy was indeed in a de facto relationship with John at the time of his death, satisfying the criteria set out in the Act. The court acknowledged the substantial emotional and financial support Amy provided to John, which was integral to their relationship. The court also held that Andrew was not entitled to rely on certain provisions of the will due to his assurances to Amy, which amounted to a representation that she would be provided for. Consequently, the court determined that family orders should be made in Amy's favour, ensuring she receives adequate provision from the estate.

The court ordered that Andrew should make financial provision to Amy, and additionally, it mandated that the beneficiaries, including Andrew, be joined as parties in the proceedings. This decision underscores the court's commitment to ensuring that eligible persons under the Succession Act receive fair provision from an estate, particularly in circumstances where there are claims of a de facto relationship.

Orders