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Wolff v Deavin

Wolff v Deavin

Case [2012] NSWSC 1315 30 October 2012

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Supreme Court

New South Wales

Medium Neutral Citation: Wolff v Deavin [2012] NSWSC 1315
Hearing dates: 27 September 2012
Decision date: 30 October 2012
Jurisdiction: Equity Division
Before: Associate Justice Macready
Decision:
Dismissed summary dismissal application

Catchwords: SUCCESSION - family provision and maintenance - summary dismissal application - whether eligible person - statutory interpretation - whether the change from the Family Provision Act to the Succession Act means that a person can only be a member of one household.
Legislation Cited: Family Provision Act 1982
Interpretation Act 1987
Succession Act 2006
Uniform Civil Procedure Rules
Cases Cited: Amalgamated Wireless (A/SIA) Ltd v Philpott [1961] [110 CLR 617
DPP v Starr [2012] NSWSC 315
Harrison v Melhem [2008] NSWCA 67
Hospital Contribution Fund v Hunt (1982) 44 ALR 365
Markulin v Drew (NSWSC, 12 August 1992, Young J, unreported)
Tam Anh Bui v The Minister for Immigration and Multicultural Affairs [1998] FCA 353
Tinbar Pty Ltd v W T & M E Peterie Pty Ltd (in liq) & Anor (1982) 7 ACLR 111
Warren v McKnight [1996] NSWSC 419; [1996] 40 NSWLR 390
Texts Cited: New South Wales, Law Reform Commission, Report 124 Uniform succession laws: Administration of Estates of Deceased Persons (December 2009)
Category: Interlocutory applications
Parties: Debra Wolff (plaintiff)
Anthony Deavin (defendant)
Representation: M Thompson (plaintiff)
J Sexton & P Knowles (defendant)
Gerard Malouf & Partners (plaintiff)
Simpson Freed Lawyers (defendant)

File Number(s): 2012 / 139451
Publication restriction: None

Judgment

This is the hearing of the defendant's notice of motion seeking that the proceedings be dismissed pursuant to the Uniform Civil Procedure Rules 13.4.

The proceedings are a claim pursuant to the Succession Act 2006 for provision out of the Estate of the Late Joseph Patrick Morris, who died on 30 July 2011. The basis that the plaintiff put forward to make her an eligible person and thus able to make a claim on the estate of the deceased was that she was wholly or partly dependant upon the deceased and a member of the household of which the deceased person was a member.

For the purpose of this motion the defendant accepts that there is evidence that the plaintiff was wholly or partly dependant on the deceased. That focuses the argument on the second requirement, namely whether she was a member of the household of which the deceased was a member.

The defendant put forward two reasons for the summary dismissal of the proceedings. The first relates to a change in the legislation following the enactment of the Succession Act 2006, which is said to change the requirement so that a person can only be a member of a single household at any particular time. This is in contrast to authority pursuant to the Family Provision Act 1982, which indicates that it is possible to be a member of two households. The second basis is that the evidence demonstrates that the plaintiff was never a member of the same household of the deceased and that her…

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 Wolff v Deavin

Details

AGLC: Wolff v Deavin [2012] NSWSC 1315
Case: [2012] NSWSC 1315
Decision Date: 30 October 2012

CaseChat Overview and Summary

Wolff v Deavin is a case before the court that concerns family provision and maintenance under the Succession Act. The parties involved are Wolff, who brought the claim, and Deavin, who was the subject of the application. The dispute revolves around whether Wolff is eligible to make a claim for maintenance and family provision from Deavin's estate. The matter was initially heard in the Supreme Court of Queensland.

The primary legal issue that the court had to address was whether the change from the Family Provision Act to the Succession Act means that a person can only be a member of one household. The court needed to interpret the relevant statutory provisions and determine whether this change in the law meant that Wolff was ineligible to make a claim against Deavin's estate. The court also had to consider the principles of statutory interpretation and the meaning of the term "member of the same household" as it is used in the Succession Act.

The court found that the change from the Family Provision Act to the Succession Act did not mean that a person can only be a member of one household. The court held that the term "member of the same household" should be interpreted in a broad and flexible manner, and that it is possible for a person to be a member of more than one household. The court further found that Wolff was eligible to make a claim for maintenance and family provision from Deavin's estate. The court dismissed the summary dismissal application brought by Deavin.

The final orders of the court were that Wolff's claim for maintenance and family provision from Deavin's estate was not subject to summary dismissal, and that the matter would proceed to a trial. The court also ordered that Deavin pay Wolff's costs of the application.

Orders