Morgan v Black [2023] NSWSC 1073

Supreme Court New South Wales

Medium Neutral Citation: Morgan v Black [2023] NSWSC 1073 Hearing dates: 14 and 15 August 2023 Date of orders: 7 September 2023 Decision date: 07 September 2023 Jurisdiction: Equity - Succession & Probate List - Family Provision Before: Nixon J Decision: (1) Order pursuant to section 91(2) of the Succession Act 2006 (NSW) that administration in respect of the estate of the deceased, Raymond Leslie Morgan, late of 3010 Bucketts Way, Belbora 2422 in the State of New South Wales, be granted to the Plaintiff for the purposes only of permitting her application for a family provision order to be dealt with. (2) Order that the Amended Summons filed on 14 August 2023 be dismissed. (3) Direct that: (a) the Defendant serve any submission in respect of costs by 4pm on 14 September 2023; and (b) the Plaintiff serve any submission in response by 4pm on 21 September 2023.

Catchwords: SUCCESSION – FAMILY PROVISION – Claim for family provision order by adult child of the deceased – Proceeding commenced outside the time prescribed by the Succession Act 2006 (NSW) for making the application – The Defendant a de facto spouse of the deceased – No actual estate out of which any order for provision could be made – The Defendant and the deceased owned property as joint tenants, which was subsequently sold with the proceeds being used by the Defendant to pay refundable accommodation deposit for care home - Application for order that refundable accommodation deposit be designated as notional estate, and for provision from balance of deposit – As Defendant does not consent, whether "sufficient cause" shown for making order extending time for making the application – No sufficient explanation given by the Plaintiff for not commencing proceedings within time – Order not made – In case that conclusion wrong, consideration also given to whether any order should be made designating the refundable accommodation deposit as notional estate of the deceased – Whether "special circumstances" existed to justify the making of a notional estate order – Whether discretion would have been exercised to make notional estate order, or family provision order – Proceeding is dismissed Legislation Cited: Aged Care Act 1997 (Cth) Fees and Payment Principles 2014 (No 2) (Cth) Succession Act 2006 (NSW) Ch 3 Cases Cited: Benz v Armstrong; Benz v Armstrong; Benz v Armstrong [2022] NSWSC 534 at [173] Bladwell v Davis [2004] NSWCA 170 Boatswain v Boatswain [2023] NSWSC 763 Choras v Farmakidis [2020] NSWSC 367 Cropley v Cropley [2002] NSWSC 349 Cross v Wasson [2009] NSWSC 378 Farr v Hardy [2008] NSWSC 996 John v John; John v John [2010] NSWSC 937 Luciano v Rosenblum (1985) 2 NSWLR 65 Madden-Smith v Madden (Estate of late Doris Linda Madden) [2012] NSWSC 146 Marshall v Carruthers; Marshall v Marshall [2002] NSWCA 47 Moore v Randall & Anor [2012] NSWSC 184 Phillips v James (2014) 85 NSWLR 619; [2014] NSWCA 4 Sreckovic v Sreckovic [2018] NSWSC 1597 Stanford v Stanford [2021] NSWSC 1469 Stone v Stone [2016] NSWSC 605 Szlazko v Travini [2004] NSWSC 610 Thomas v Pickering; Byrne & Anor v Pickering [2011] NSWSC 572 Underwood v Gaudron [2015] NSWCA 269 Vasconelos v Bonetig [2011] NSWSC 1029 Vaughan v Curran [2019] NSWSC 1562 Verzar v Verzar [2012] NSWSC 1380 Verzar v Verzar [2014] NSWCA 45 Category: Principal judgment Parties: Tara Morgan (Plaintiff) Janette Black (Defendant) Representation: Counsel: K Morrissey (Plaintiff) S Chapple and D Yazdani (Defendant)