Wertheim v Perpetual Trustee Company Limited [2021] NSWSC 1229

Supreme Court New South Wales

Medium Neutral Citation: Wertheim v Perpetual Trustee Company Limited [2021] NSWSC 1229 Hearing dates: 20 – 21 September 2021 Date of orders: 29 September 2021 Decision date: 29 September 2021 Jurisdiction: Equity Before: Hallen J Decision: The Court: i. Directs the parties to bring in Short Minutes of Order reflecting these reasons and proposed orders. ii. Orders that if agreement is reached, signed Short Minutes of Order may be forwarded to the Court, for consideration, in Chambers, so that the orders proposed may be made, and entered, and the adjourned date vacated. iii. Orders, in the event that agreement cannot be reached, the proceedings are adjourned until 4:00 p.m. on Thursday, 14 October 2021, for the purpose of dealing with any matters unable to be agreed. Catchwords: SUCCESSION – The Plaintiff makes a claim for a family provision order - No dispute as to the Plaintiff's eligibility as a person with whom the deceased was living in a de facto relationship at the date of his death – Small provision made for the Plaintiff in the Will of the deceased - Defendant, a trustee company, is the executor to whom Probate granted – Four residuary beneficiaries named in the Will of the deceased are his children by his earlier marriage - Relevance of financial conduct of the parties during the relationship – Lack of financial inter-relationship between them - Whether any arrangement or understanding existed between deceased and the Plaintiff that each would leave his, or her, estate, respectively, to his children, or her child, respectively – If so, relevance of such arrangement or understanding - Nature of provision to be made – Whether absolute interest, life estate, Crisp order, or other form of provision should be made – Competing claim of each of the adult children of the deceased and the Plaintiff – Order for provision made Legislation Cited: Civil Procedure Act 2005 (NSW) s 98(4)(c) Fair Trading Act 1987 (NSW) s 42 Family Law Act 1975 (Cth) ss 90UB-90UBC Family Provision Act 1982 (NSW) Interpretation Act 1987 (NSW) s 21C Probate and Administration Act 1898 (NSW) ss 84A3 & 86 Succession Act 2006 (NSW) ss 3, 57-59, 60-61, 63, 65-66, 72, 84, 95 & 99 Trade Practices Act 1974 (Cth) s 52 Cases Cited: Armagas Ltd v Mundogas S.A. (The "Ocean Frost") [1985] 3 WLR 640; [1985] 1 Lloyd's Rep 1 Askew v Askew [2015] NSWSC 192 Banks v Goodfellow (1870) 5 LR QB 549 Bathurst Regional Council v Local Government Financial Services Pty Ltd (No 5) [2012] FCA 1200 Borebor v Keane (2013) 11 ASTLR 96; [2013] VSC 35 Bouttell v Rapisarda [2014] NSWSC 1192 Bowyer v Wood (2007) 99 SASR 190; [2007] SASC 327 Court v Hunt (Supreme Court (NSW), Young J, 14 September 1987, unrep) Crisp v Burns Philp Trustee Company Ltd (Supreme Court (NSW), Holland J, 18 December 1979, unrep) Edgar v Public Trustee for the Northern Territory [2011] NTSC 5 Effem Foods Pty Ltd v Lake Cumbeline Pty Ltd [1999] HCA 15; (1999) 161 ALR 599 Foley v Ellis [2008] NSWCA 288 Gorton v Parks (1989) 17 NSWLR 1 Grey v Harrison [1997] 2 VR 359 Harbour Port Consulting v NSW Maritime [2011] NSWSC 813 Heyward v Fisher (Court of Appeal (NSW), Kirby P, 26 April 1985, unrep) Hughes v St Barbara Mines Ltd [No 4] [2010] WASC 160 In the matter of Kit Digital Australia Pty Ltd (in liq) [2014] NSWSC 1547 Kay v Archbold [2008] NSWSC 254 Koellner v Spicer [2019] NSWSC 1571 Lake Cumbeline Pty Ltd v Effem Foods Pty Ltd (trading as Uncle Ben's of Australia) (Federal Court of Australia, Tamberlin J, 29 June 1995, unrep) Liprini v Liprini [2008] NSWSC 423 McKenzie v Topp [2004] VSC 90 Milillo v Konnecke [2009] NSWCA 109 Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 Prior v Kerrison [2017] NSWSC 1295 Rakovich v Marszalek [2020] NSWSC 589 Re Schlink; Keane v Corns [2020] VSC 180 Schneider v Kemeny; Kemeny v Schneider [2021] NSWSC 524 Sgro v Thompson [2017] NSWCA 326 Shannon v Steinmetz [2019] HCASL 332 Spiteri v Vassallo [2020] NSWSC 890 Starr v Miller [2021] NSWSC 426 Steinmetz v Shannon (2019) 99 NSWLR 687; [2019] NSWCA 114 Sung v Malaxos [2015] NSWSC 186 Swansson v Harrison & Ors [2014] VSC 118 Szypica v O'Beirne [2013] NSWSC 297 Watson v Foxman & Ors (1995) 49 NSWLR 315 Webb v Ryan [2012] VSC 377 Texts Cited: L G Handler and R Neal, Mason and Handler's Succession Law and Practice in New South Wales (1985, LexisNexis Butterworths) Category: Principal judgment Parties: Carol Wertheim (Plaintiff) Perpetual Trustee Company Limited (Defendant) Representation: Counsel: K Morrissey (Plaintiff) M Meek SC (Defendant)