Bowers v Matthews [2024] NSWSC 1353

Supreme Court New South Wales

Medium Neutral Citation: Bowers v Matthews [2024] NSWSC 1353 Hearing dates: 3 October 2024 Date of orders: 31 October 2024 Decision date: 31 October 2024 Jurisdiction: Equity - Succession & Probate List - Family Provision Before: Meek J Decision: Proceedings brought by (now deceased) first plaintiff dismissed, with no specific order made as to her costs. Orders otherwise substantially made in accordance with revised consent orders agreed to between remaining parties. Catchwords: SUCCESSION — Family provision — Claim by a de facto spouse of the deceased (first plaintiff) and her daughter (second plaintiff), who claimed to be a dependent member of the household of which the deceased was a member — Parties settled the proceedings with an amount of provision being agreed for both plaintiffs, as well as a specified amount of their costs to be paid out of the estate, subject to the fulfilment of certain conditions — First plaintiff died before orders were made giving effect to settlement — Defendant executrix by a notice of motion sought a declaration that the proceedings instituted by the first plaintiff abated by reason of her death and an order that those proceedings be dismissed with no order as to costs, which relief was reflected in a revised form of consent orders agreed to between the remaining parties SUCCESSION — Family provision — Abatement of proceedings — Whether family provision order can be made in respect of a deceased applicant —Whether statutory right of an applicant to bring a family provision claim survives her death — Discussion of context of Ch 3 of the Succession Act 2006 (NSW), including purposes of family provision legislation and context of historical and recent family provision reforms in NSW — Discussion of textual indicators bearing upon nature of family provision claims — Determined that an order under Ch 3 of the Succession Act 2006 (NSW) can only be made in favour of a person then living —Determined that a right to bring a claim under Ch 3 of the Succession Act 2006 (NSW) is personal and therefore not transmissible so as to survive the applicant's death — Held that proceedings instituted by first plaintiff abated on her death and ought to be dismissed SUCCESSION — Family provision — Interests of a potentially eligible person or affected beneficiary under an incapacity — Discussion of requirements for service of a Notice of Claim on a person under an incapacity — Discussion of issues regarding the representation of interests of persons under an incapacity — Whether interests of second plaintiff's child (a minor) should be disregarded — Held that service of a Notice of Claim on second plaintiff, in an attempt to satisfactorily serve her child, was not adequate — However, in the circumstances of the case, in particular the relatively short time in which the child was potentially dependent upon the deceased and the fact that he is under the care of the second plaintiff who is providing for him, the proposed settlement (which included provision to the second plaintiff) ought to proceed without any further requirement for service of a Notice of Claim on the child SUCCESSION — Family provision — Interests of other potentially eligible persons — Basis for disregarding interests — Whether interests of the deceased's former de facto spouses and the adult child of the second plaintiff can be disregarded — In circumstances where (inter alia) both former spouses were likely deceased and the adult child had been served a Notice of Claim and did not wish to bring a claim, their interests could be disregarded COSTS — Jurisdiction — Whether the Court has jurisdiction to make a costs order in family provision proceedings which abate — Discussion of effect of abatement on proceedings and cases where the Court has determined that the proceedings are a nullity — Authorities indicate that it cannot be presumed that the Court has jurisdiction to make a positive costs order in favour of or against a deceased applicant — Position in respect of costs of defendant executrix is arguably different, as such costs properly incurred will ordinarily be a testamentary expense to be paid out of the estate — Notation made that the costs of the first plaintiff will be a matter to be addressed, if at all, by those interested in the administration of her estate, without the benefit of a specific court order — Order made for defendant's costs to be paid out of the estate on the indemnity basis Legislation Cited: Civil Procedure Act 2005 (NSW) Family Protection Act 1955 (NZ) Family Provision Act 1982 (NSW) Interpretation Act 1987 (NSW) Law Reform (Miscellaneous Provisions) Act 1944 (NSW) Property (Relationships) Act 1984 (NSW) Succession Act 1981 (Qld) Succession Act 2006 (NSW) Succession Amendment (Family Provision) Bill 2008 (NSW) Succession Bill 2006 (NSW) Testator's Family Maintenance Act 1900, 64 Vict, c 20 Testator's Family Maintenance Act 1912 (Tas) Testator's Family Maintenance and Guardianship of Infants Act 1916 (NSW) Trustee Act 1925 (NSW) Supreme Court Rules 1970 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Ainsworth v Redd (1990) 19 NSWLR 78 Alexiou v Alexiou [2024] NSWSC 1340 AMS v AIF (1999) 199 CLR 160; [1999] HCA 26 Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308 Andrew v Andrew (No. 3) [2013] NSWSC 286 Bogeta Pty Ltd v Wales [1977] 1 NSWLR 139 Brooks v Young (2018) 131 SASR 365; [2018] SASCFC 81 Chappell as Executor of the Estate of Robert Hastings Hitchcock v Goldspan Investments Pty Ltd (2021) 58 WAR 503; [2021] WASCA 205 Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392 Darrington v Caldbeck (1990) 20 NSWLR 212 Deveigne v Askar (2007) 69 NSWLR 327; [2007] NSWCA 45 Fairhurst (bht NSW Trustee and Guardian) v Fairhurst [2012] NSWSC 388 Felton (formerly Oser) v Oser (1969) 72 SR (NSW) 24 Hall v Hansen [2008] NSWSC 1200 Institoris by his next friend Maria Institoris v Falconer [2012] NSWCA 298 Irvine v Public Trustee [1989] 1 NZLR 67 Jurak v Latham [2023] NSWSC 1318 Kalejs v Minister for Justice and Customs (2001) 111 FCR 442; [2001] FCA 1769 Kelly v Kelly [2019] NSWSC 994 King v Condon [2009] 2 Qd R 143; [2009] QSC 67 Managing Director, New South Wales Technical and Further Education Commission v Fines (1993) 32 NSWLR 385 Marshall v D G Sundin & Co Pty Ltd (1989) 16 NSWLR 463 McEvoy v Public Trustee (1989) 16 NSWLR 92 Muir v Angeles [2020] NSWSC 1056; (2020) 355 FLR 137 O'Brien v McCormick [2005] NSWSC 619 Permanent Trustee Co Ltd v Mills (2007) 71 NSWLR 1; [2007] NSWSC 336 Price v Ikin [2004] NSWSC 706 Re Magson [1983] NZLR 592 Robbins v Hume [2015] VSC 128 Rodny v Weisbord [2024] NSWCA 183 Salmon v Osmond [2015] NSWCA 42; (2015) 14 ASTLR 442 Samsley v Barnes [1990] NSWCA 161 Scruby v Hoggan (1954) 55 SR (NSW) 2 Singer v Berghouse [1993] HCA 35; (1993) 114 ALR 521 Spelman v Spelman [1920] NZLR 202 Stead v Foster (Supreme Court (NSW), Levine J, 4 September 1998, unrep) Sydney Seaplanes Pty Ltd v Page (2021) 106 NSWLR 1; [2021] NSWCA 204 Tarbes v Taleb [2023] NSWSC 565 Thomson Australian Holdings Pty Ltd v Trade Practices Commission (1981) 148 CLR 150; [1981] HCA 48 Wass v Director of Public Prosecution (NSW); Wass v Constable Wilcock [2023] NSWCA 71 Texts Cited: Atherton, Rosalind F, "The Testator's Family Maintenance and Guardianship of Infants Act 1916 (NSW): Husband's Power v Widow's Right" (1990) 6 Australian Journal of Law and Society 97 Dal Pont, G E, Law of Costs (5th ed, 2021, LexisNexis Australia) Dal Pont, G E, Law of Succession (3rd ed, 2021, LexisNexis) de Groot, John and Bruce Nickel, Family Provision in Australia (6th ed, 2021, LexisNexis) Explanatory Note to the Succession Bill 2006 (NSW) Handler, Leslie, and Richard Neal, Mason and Handler Succession Law and Practice NSW (LexisNexis) Lindsay J, "Parties, Property and Notice of Proceedings in Succession Law Cases" (Paper), College of Law Seminar, 20 February 2019 Lindsay J, "The Dynamics and Dilemmas of Costs Orders upon an Exercise of 'Welfare' Jurisdiction" (Paper), The Blue Mountains Law Society 2023 Succession Conference, 7-8 September 2024 Macquarie Dictionary, online ed New South Wales Law Reform Commission, Report 110 (2005) – Uniform Succession Laws: Family Provision (May 2005) New South Wales Law Reform Commission, Report 85 (1998) – Uniform Succession Laws: The Law of Wills (April 1998) New South Wales Legislative Council, Parliamentary Debates (Hansard), 30 August 1916, 26 June 2008, 24 September 2008 Oxford Classical Dictionary, "lex Falcidia" (URL reference below) accessed 29 October 2024 Practice Note SC EQ 07 Category: Principal judgment Parties: Elaine Marjorie Bowers (First Plaintiff) Nicole Bowers (Second Plaintiff) Karyn Edwina Matthews (Defendant / Applicant) Representation: Counsel: J E Armfield (Defendant / Applicant)