Flinn v Fearne [1999] NSWSC 1041

New South Wales Supreme Court CITATION : Flinn v Fearne [1999] NSWSC 1041 CURRENT JURISDICTION : Equity Division FILE NUMBER(S) : 2003/98 HEARING DATE(S) : 29 September 1999 JUDGMENT DATE : 21 October 1999

Cheryl Ann Flinn (P1) Wendy Kay Fritsch (P2) Toni Patricia Roose (P3) Janelle Sylvia Lancaster (P4) PARTIES : Audrey Edith Fearne (D1) Jonhold Pty Limited (D2) Fearne Investments Pty Limited (D3) Fearne Transport Pty Limited (D4) Fearnes Charters Pty Limited (D5) Sharan Pty Limited (D6) JUDGMENT OF : Master McLaughlin

COUNSEL : Dr. C. Birch (P) Mr. F. S. McAlary Q.C., Miss S. Kaur-Bains (D) SOLICITORS : Hogan Geike Poole (P) Jackson Smith (D) CATCHWORDS : Family Provision; Separate Question; Whether the testator entered into a prescribed transaction; Whether power of testator to remove a trustee and to appoint a new trustee constituted de facto control by him over the assets of a family trust. ACTS CITED : Family Provision Act 1982 CASES CITED : Kavalle v Burbidge (1998) 43 NSWLR 422 DECISION : See paragraph 31.

SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

MASTER McLAUGHLIN

Thursday, 21 October 1999

2003/98 CHERYL ANN FLINN & ORS -v- AUDREY EDITH FEARNE JUDGMENT

1 MASTER: These are proceedings under the Family Provision Act 1982. By summons filed on 9 April 1998 the plaintiffs, Cheryl Ann Flinn, Wendy Kay Fritsch, Toni Patricia Roose and Janelle Sylvia Lancaster, claim an order for provision for their maintenance and advancement in life out of the estate of their late father, Garry William Fearne (to whom I shall refer as "the deceased"), and, further, an order pursuant to section 23 on the Family Provision Act, "designating as notional estate certain property which was the subject of a prescribed transaction". 2 The deceased died on 8 November 1996. He left a will dated 7 November 1996. By that will the deceased appointed the defendant, Audrey Edith Fearne, as executor and gave to the defendant the entirety of his estate absolutely. 3 The deceased had been married twice. The four plaintiffs are the children of his first marriage. The deceased and his first wife were subsequently divorced. The defendant was the second wife of the deceased. Of his marriage to the defendant was born another daughter Michelle Kathleen Fearne, who is presently aged fifteen. 4 The hearing of the substantive proceedings was fixed for 29 September 1999. On the day preceding that date the parties requested that the matter be listed before me for mention and directions. The purpose of that mention was to enable the Court to be informed of the fact that the actual estate left by the deceased was not of any great significance, and that unless there were to be designated as notional estate of the deceased (as sought by prayer 2 in the summons) certain assets, consisting of an omnibus business conducted in the environs of Wagga Wagga, there would be no fund available to meet any order for provision to which any or all of the plaintiffs might ultimately establish an entitlement. 5 Accordingly on 28 September 1999 the plaintiffs made application, to which the defendant consented, for the determination, pursuant to Part 31 rule 2 of the Supreme Court Rules, of a separate question before the hearing of the substantive proceedings, such separate question being in respect to the existence of a prescribed transaction. 6 I acceded to that application and made the following orders: 1. I order, pursuant to Part 31 rule 2 of the Supreme Court Rules, that the question set forth in the document entitled "Separate Question" initialled by me and filed in Court this day be decided separately from any other question in the proceedings.