Jalife v McIntyre [2020] NSWSC 799

Supreme Court New South Wales

Medium Neutral Citation: Jalife v McIntyre [2020] NSWSC 799 Hearing dates: On the papers Date of orders: 26 June 2020 Decision date: 26 June 2020 Jurisdiction: Common Law Before: Davies J Decision: 1. Exhibit SE3 to the affidavit of Sera Elmasri sworn 15 May 2020, being the confidential advice of Michael Meek SC, is to be placed in a sealed envelope and marked "Confidential. Not to be opened without the leave of a judge of the Court". 2. Order that Noah McIntyre and Grayson McIntyre be added to the proceedings as the Third Defendant and the Fourth Defendant respectively. Dispense with any further requirements of the Rules in that regard. 3. Note that each of the first and second defendants hereby releases her and his rights respectively to make a claim for provision out of the estate and notional estate of the plaintiff in the event that the plaintiff should become a deceased person. 4. Note that each of the third and fourth defendants, by their tutor, Sera Elmasri, hereby releases his rights, respectively, to make a claim for provision out of the estate and notional estate of the plaintiff in the event that the plaintiff should become a deceased person. 5. Grant to each of the third and fourth defendants, who are minors, pursuant to s 26 of the Minors (Property and Contracts) Act 1970 (NSW), capacity to bind himself to the orders in these proceedings, including his respective releases referred to. 6. Approve the settlement contained in the Deed of Settlement and Release dated 24 February 2020 pursuant to s 76 of the Civil Procedure Act 2005 (NSW). 7. Order that the release by each of the defendants of her and his rights respectively, to apply for a family provision order out of the whole, or any part, of the estate or notional estate of the plaintiff, in the event that the plaintiff should become a deceased person, be approved pursuant to s 95 of the Succession Act 2006 (NSW). Catchwords: SUCCESSION - family provision - approval of release under s 95 Succession Act 2006 - where plaintiff was the owner of property and defendants and their children (both minors) moved to property to care for plaintiff - defendants were daughter and son-in law of plaintiff - where relationship has broken down and plaintiff now seeks possession of property – cross-claim by defendants for constructive trust - settlement of proceedings at mediation – where settlement involves selling property, distributing balance between the plaintiff and defendants, and paying grandchildren a portion of the estate upon plaintiffs death – where defendants and grandchildren seek approval of release of rights – whether release should be approved by Court – whether agreement was advantageous, prudent and fair and reasonable for the defendants Legislation Cited: Civil Procedure Act 2005 (NSW) s 76 Minors (Property and Contracts) Act 1970 (NSW) s 26 Succession Act 2006 (NSW) ss57, 59 and 95 Uniform Civil Procedure Rules 2005 (NSW) r 6.24 Cases Cited: Kelly v Kelly [2019] NSWSC 994 McMahon v McMahon (Supreme Court (NSW), Young J, 2 August 1985, Unrep) Neil v Jacovou [2011] NSWSC 87 Robinson v Robinson [2020] NSWCA 4 Spata v Tumino [2018] NSWCA 17 Texts Cited: Nil Category: Principal judgment Parties: Jose Jalife (Plaintiff) Alicia Iris McIntyre (First Defendant) Roger McIntyre (Second Defendant) Noah McIntyre (Third Defendant) Grayson McIntyre (Fourth Defendant) Representation: Counsel: On the papers