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Wood v McLean

Wood v McLean

Case [2010] VSC 550 8 December 2010

Unconscionable Conduct

Standing

Summary Judgment

Succession Law

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. SCI 02877 of 2010

BETWEEN

CAROLINE WOOD and ALAN STEPHEN JACK	Plaintiffs
and
EWAN BRUCE McLEAN (who is sued as executor of the estate of ALFRED BASIL JACK, deceased)	First Defendant
and
ELIZABETH MICHAELA JACK	Second Defendant

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JUDGE:	SIFRIS J
WHERE HELD:	Melbourne
DATE OF HEARING:	17 November 2010
DATE OF JUDGMENT:	8 December 2010
CASE MAY BE CITED AS:	Wood & Jack v McLean & Jack
MEDIUM NEUTRAL CITATION:	[2010] VSC 550

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ADMINISTRATION AND PROBATE – Deceased transferred property to daughter during his lifetime – Deceased’s other children claim transfer was unconscionable – Executor refused to bring proceedings against daughter for unconscionable conduct - Whether deceased’s other children have standing to commence proceedings – Other children are not beneficiaries – Other children have issued separate proceedings seeking provision under Administration & Probate Act 1958 (Vic) Pt IV.

PRACTICE AND PROCEDURE – Application by defendants pursuant to r 23.01 for summary dismissal – Court heard full argument - Whether Court can make determination on question of law – Supreme Court (General Civil Procedure) Rules 2005 (Vic) r 23.01

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S Newton	Kennedy Guy
For the First Defendant	Mr R T A Waddell	Resources Law International
For the Second Defendant	Mr K J Naish	Holding Redlich

HIS HONOUR:

A. Background

Alfred Basil Jack (“the deceased”) died on 18 September 2009.

The plaintiffs are two of the deceased’s children.

Prior to his death and on 18 February 2008, the deceased transferred the property known as 7 Thackeray Court, Croydon (“the Property”) to his youngest daughter, Elizabeth Michaela Jack (“Elizabeth”), the second defendant. The Property was the deceased’s largest asset.

In his last will dated 24 March 2009, the deceased made no provision for the plaintiffs.

The plaintiffs have commenced proceedings in this Court against the first defendant, Ewan Bruce McLean, as executor of the estate of the deceased (“Executor”). They are seeking orders pursuant to Part IV of the Administration & Probate Act 1958 (Vic) to the effect that provision be made for them from the estate of the deceased (“the Part IV proceeding”).

In addition to commencing the Part IV proceeding, the plaintiffs have commenced this proceeding against the Executor and Elizabeth, their sister.

The amended statement of claim alleges that at the time the Property was transferred to Elizabeth, the deceased was in a position of special disadvantage. The nature and extent of the special disadvantage is set out in paragraph 10 of the amended statement of claim.

Pursuant to paragraph 11 of the amended statement of claim, it is alleged that the transfer was made in circumstances in which it would be unconscionable for Elizabeth to accept or retain the gift.

By summons filed 6 October 2010, the Executor made application for the dismissal of the proceeding pursuant to rule 23.01(1)(a) of the Supreme Court (General Civil Procedure) Rules 2005. The basis of the…

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 Wood v McLean

Details

AGLC: Wood v McLean [2010] VSC 550
Case: [2010] VSC 550
Decision Date: 8 December 2010

CaseChat Overview and Summary

In the matter of Wood v McLean, the dispute arose from a transfer of property by a deceased man, Mr Wood, to his daughter, Ms McLean, during his lifetime. The deceased's other children contested the transfer, alleging that it was unconscionable. They further claimed that the executor had refused to bring proceedings against Ms McLean for her unconscionable conduct. The primary legal issue before the court was whether the deceased's other children had standing to commence proceedings against Ms McLean, given that they were not beneficiaries of the estate.

The court considered whether the other children had standing to initiate proceedings, despite not being beneficiaries. It also examined whether it could make a determination on a question of law pursuant to the Supreme Court (General Civil Procedure) Rules 2005 (Vic) rule 23.01. The court heard full arguments from the parties, even though the defendants had applied for summary dismissal. The court found that the deceased's other children did not have standing to commence proceedings against Ms McLean for unconscionability. The court further held that it could make a determination on a question of law in this instance, despite the defendants' application for summary dismissal.

The final orders of the court were that the defendants' application for summary dismissal was dismissed, but the plaintiffs' claims were dismissed on the basis that they did not have standing to bring the proceedings. Additionally, the court found that it could make a determination on the question of law under the relevant rules, even though the application was for summary dismissal.

Orders