Brewer v Ney [2023] NSWSC 526

Supreme Court New South Wales

Medium Neutral Citation: Brewer v Ney [2023] NSWSC 526 Hearing dates: 12-13 April 2023 Date of orders: 18 May 2023 Decision date: 18 May 2023 Jurisdiction: Equity Before: Hallen J Decision: The Court: (1) Having regard to all the facts known at the date of hearing the application, and not being satisfied that (i) there are factors warranting the making of the application; and, (ii) even if there were, that adequate provision for the Plaintiff's proper maintenance and advancement in life has not been made by the deceased's Will, declines to make any order for provision for the Plaintiff out of the deceased's estate. (2) Orders that the proceedings be dismissed. (3) Makes no order for the Plaintiff's costs. (4) Orders that the Defendant's costs, calculated on the indemnity basis, be paid, or retained, as the case may be, out of the estate of the deceased Catchwords: SUCCESSION – Family provision – claim by son-in-law of the deceased – Sole residuary beneficiaries are the daughter and her husband, another son-in law of the deceased – Reasonably large estate – Dispute as to nature of Plaintiff's relationship with deceased – Plaintiff alleges membership of the household of which the deceased was a member and partial dependency – Whether rent free accommodation given because of relationship with deceased – Whether any factors warranting the making of the application – Not so satisfied - Summons dismissed – No costs order sought against Plaintiff who had conditional costs agreement with his own solicitors Legislation Cited: Family Provision Act 1982 (NSW) Probate and Administration Act 1898 (NSW) Succession Act 2006 (NSW) Cases Cited: Anderson v Teboneras [1990] VR 527 Ballam & Ors v Ferro & Anor [2022] NSWSC 1200 Bezjak v Wyatt [2018] NSWSC 199 Blendell v Blendell; Blendell v Blendell [2020] NSWCA 154 Blendell v Byrne; Estate of Noeline Joan Blendell [2019] NSWSC 583 Churton v Christian (1988) 13 NSWLR 241 Devereaux-Warnes v Hall (No 3) [2007] WASCA 235 Jodell v Woods [2017] NSWSC 143 Kingsland v McIndoe [1989] VR 273 Lester v Lester; In the Estate of Dulcie Brown [2020] NSWSC 958 Lodin v Lodin [2017] NSWCA 327 Matthews v Wear [2011] NSWSC 1145 Mekhail v Hana; Mekail v Hana [2019] NSWCA 197 Nagatomi v Hudson (Supreme Court (NSW), Young J, 18 September 1997, unreported) Oakes v Oakes [2014] NSWSC 1312 Page v Hull-Moody [2020] NSWSC 411 Page v Page [2017] NSWCA 141 Poletti v Jones (2015) 13 ASTLR 113 Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 Porthouse v Bridge [2007] NSWSC 686 Purnell v Tindale [2020] NSWSC 746 Re Fulop, Deceased (1987) 8 NSWLR 679 Russell v NSW Trustee and Guardian [2013] NSWSC 370 Sammut v Kleemann [2012] NSWSC 1030 Singer v Berghouse (1994) 181 CLR 201 Spata v Tumino (2018) 95 NSWLR 706 Sun v Chapman [2022] NSWCA 132 Tobin v Ezekiel (2012) 83 NSWLR 757 Verzar v Verzar [2012] NSWSC 1380 White v Barron (1980) 144 CLR 431 Wilcox v Wilcox [2012] NSWSC 1138 Category: Principal judgment Parties: John Alexander Brewer (Plaintiff) Tracey Lynne Ney (Defendant) Representation: Counsel: A F Stevens (Plaintiff) N Bilinsky (Defendant)