CAMPBELL v CAMPBELL [1992] NSWCA 35

CAMPBELL v CAMPBELL SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

GLEESON CJ, MAHONEY AP and Cripps JA 23 June 1992, 9 July 1992 [1992] NSWCA 35

APPEAL from Equity Division — Testator's Family Maintenance and Guardianship of Infants Act 1916 — Superannuation benefits ($82,575) arising from employment of deceased paid to Public Trustee — Public Trustee administrator of deceased's estate Widow is beneficiary on intestacy up to $100,000 — Whether paid to Public Trustee as administrator of the estate or on behalf of widow — Held: Paid to Public Trustee as agent for widow in accordance with Superannuation Rules — Held: Not part of estate.

Gleeson CJ I have had the benefit of reading in draft form the judgment of Mr Justice Mahoney. I agree with the orders proposed by his Honour and his reasons for those orders.

Mahoney JA Gregory Paul Campbell is a son of the late James Thomas Campbell ("the deceased"). The deceased died on 28 July 1982. On 18 November 1982 Letters of Administration in his estate were granted to The Public Trustee. On 16 November 1983 the plaintiff, by his tutor the Protective Commissioner, commenced proceedings seeking an order for provision out of the estate of the deceased.

On 20 September 1989 Powell J ordered that the plaintiff receive out of the estate a legacy of $20,000, the legacy to be charged "upon the sum of $82,575 paid by the Trustees of the Total Australia Limited Superannuation Fund to the Public Trustee".

The estate of the deceased has been administered by the Public Trustee upon the basis that his widow Eunice May Campbell ("Mrs Campbell") was the sole beneficiary. She is or has been treated as a party in the proceeding.

Mrs Campbell has appealed to this Court against his Honour's order.

Miss Blackman, for Mrs Campbell, has made three substantial submissions: that there was no estate out of which the order could be made; that (if there was) the order should not have been made; and that the application made by the plaintiff was invalid.