WHITE v MERCER [1997] NSWCA 340

WHITE v MERCER

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MASON P, MEAGHER and HANDLEY JJA 13 October 1997, 13 October 1997 [1997] NSWCA 340

Family Provision Act — error by Master in fact — circumstance in which Court ought intervene.

FACTS

The appellant failed on her application before Master McLaughlin under the Family Provision Act because he found that she had knowingly and voluntarily severed her relationship with the deceased, her father.

HELD

1. The finding of the Master was wrong in fact and is a circumstance in which the Court should intervene.

Meagher JA This is an appeal by a plaintiff who was unsuccessful in making an application under the Family Provision Act 1982 before Master McLaughlin. She was a daughter and the only daughter of the deceased. Her only sibling was her brother, the present respondent. The deceased was the father of the appellant and the respondent and he gave the whole of his estate to the respondent.

The principal reason why the Master dismissed the plaintiff's application was he came to the conclusion that she had voluntarily and knowingly severed her relationship with him. The assets of the estate consisted principally of a house at Galston which, before the Master, had a value of $220,000, together with various other sums of money and articles of furniture and the like worth $78,000, bringing total assets up to $330,000.

The plaintiff, his daughter, earned $373 per week. She paid rent of $100 a week. There was no indication that she had any other assets nor that she had any debts to speak of. The defendant respondent, her brother, earns $1,400 a month after tax. He has a mortgage over the property in which he lives at Galston. He lives with a defacto wife and they have four children between them.

The family history is of a somewhat unfortunate kind. The plaintiff left school in 1987. A year later, in November 1988, she left home at about the age of 18. Her parents seemed to separate in April 1989, although their divorce was not finalised until at least November 1991.