Robertson & Anor v Byrne & Ors [2022] NSWSC 1713

Supreme Court New South Wales

Medium Neutral Citation: Robertson & Anor v Byrne & Ors [2022] NSWSC 1713 Hearing dates: 8, 9 and 10 December 2020, 23 and 25 February, 28 April, 22 and 23 June, 13 August ,12 November, 14 December 2021, 20 April, 11 May 2022. Date of orders: 14 December 2022 Decision date: 14 December 2022 Jurisdiction: Equity Before: Slattery J Decision: Claims in contract, common intention constructive trust and equitable estoppel succeed against the first defendant, executrix in relation to. Consideration of the claims against the remaining defendants deferred to permit submissions on (1) whether the contract and other relief is enforceable on behalf of the estate of the stepsibling who died before the deceased testator, and (2) whether the plaintiffs are required to exhaust their remedies against the first defendant before seeking relief against the remaining defendants. The second plaintiffs' Succession Act claim fails against the estate. Parties are directed to bring in short minutes of order to give effect to the Court's reasons. Catchwords: CONTRACTS - contract to make a will – a woman, now deceased, receives a loan from her father to assist her to acquire a property, in exchange for what is said to be a promise by her that she would leave the property by will upon her death to her two step- brothers, both of whom are now deceased, although one of the stepbrothers was alive when she died – upon the woman's death the property was not left to the stepbrothers – whether the woman made the promise upon her acquisition of the property – whether there is an enforceable contract to leave the property by will – whether to enforce the contract a constructive trust should be declared over the property in favour of the first plaintiff and the estate of the deceased stepbrother, the third plaintiff. EQUITABLE ESTOPPEL – constructive trust – whether in the alternative to the claims in contract the estates of the stepbrothers may seek relief under doctrines of equitable estoppel and common intention constructive trust arising out of the same circumstances as the contract claim. FAMILY PROVISION – Succession Act 2006, Chapter 3 – a stepbrother of the deceased, the first plaintiff, and his son, the second plaintiff, apply for further provision out of the estate of the deceased – the first plaintiff dies in the course of the proceedings and his claim is withdrawn – the second plaintiff claims to be an eligible person under Succession Act, s 57(e) as a member of the same household as the deceased and dependent upon her – whether the second plaintiff is an eligible persons – whether the second plaintiff has shown factors warranting the bringing of his claim. Legislation Cited: Civil Procedure Act 2005, s 14 Legal Profession Uniform Law Application Act 2014 Limitation Act 1969, s 14 Probate and Administration Act 1898, ss 92, 93 Real Property Act 1900 Succession Act 2006, Chapter 3, ss 54, 54(1)(g), 54(2)(a), 54(2)(b), 54(2)(e), 54(2)(g), 57(e), 57(e)(i) and (ii), 59 Supreme Court Rules 1970, Part 78 Rule 9, r 93(a) Uniform Civil Procedure Rules 2005, rr 7.10(2)(a) and (b) Cases Cited: Austotel Pty Ltd v Franklins Selfserve Pty Ltd (1989) 16 NSWLR 582 Barnes v Alderton [2008] NSWSC 107 Bellingen Shire Council v Colavon Pty Ltd (2012) 188 LGERA 169 Churton v Christian (1988) 13 NSWLR 24 Crawley v Short [2009] NSWCA 410 Deputy Commissioner of Taxation v Brown (1958) 100 CLR 32 Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95 Flocas v Carlson [2015] VSC 221 Giumelli v Giumelli (1999) 196 CLR 101 Handley v Baddock [1987] WAR 98 Heperu Pty Limited v Belle [2009] NSWCA 252 Ministry of Health v Simpson [1951] AC 251 Palmer v Bank of New South Wales (1973) 2 NSWLR 244 Re Fulop (1987) 8 NSWLR 679 at 681 Ritz Hotel Ltd v Charles of the Ritz Ltd (No 22) (1988) 14 NSWLR 132 Saliba v Tarmo [2009] NSWSC 581 Sidhu v Van Dyke (2014) 251 CLR 505; 308 ALR 232 Waltons Stores (Interstate) Ltd v Maher [1988] HCA 7 Watson v Foxman (1995) 29 NSWLR 315 Category: Principal judgment Parties: First Plaintiff: Raymond Robertson Second Plaintiff: Richard Robertson