Russell v Quinton [2000] NSWSC 322

New South Wales Supreme Court

CITATION : Russell v Quinton [2000] NSWSC 322 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 2487/99 HEARING DATE(S) : 6, 7, and 8 March 2000 JUDGMENT DATE : 17 April 2000

PARTIES : Kaye Lorraine Russell (Plaintiff/Cross defendant) Luke William Quinton (Defendant/Cross claimant) JUDGMENT OF : Bergin J

COUNSEL : P Hallen SC (Plaintiff) D Studdy (Defendant) SOLICITORS : Conway MacCallum (Plaintiff) Lane & Lane (Defendant) CATCHWORDS : Application for approval of release pursuant to s.31 Family Provision Act 1982 - Whether prudent, fair and reasonable in all the circumstances in which independent legal advice given - Application for provision pursuant to s.7 Family Provision Act 1982 - De facto relationship for 21 years in which plaintiff in full time employment and with separate financial affairs. LEGISLATION CITED : Family Provision Act 1982. Luciana v Rosenblum (1985) 2 NSWLR 65 at 69; Singer v Berghouse (1994) 181 CLR 201 at 208-209; CASES CITED : White v Barron (1980) 144 CLR 431; Golosky v Golosky (unreported Court of Appeal 5.10.93); Anasson & ors v Phillips (unreported Supreme Court of NSW 4.5.1988 Young J). DECISION : Application for approval of release rejected. Cross claim dismissed. Order for further provision.

THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

BERGIN J

DATE 17 APRIL 2000

2487/99 - KAYE LORRAINE RUSSELL v LUKE WILLIAM QUINTON

JUDGMENT

1 This is an application by the plaintiff, Kaye Lorraine Russell, for an order pursuant to s 7 of the Family Provision Act 1982 (the Act), that provision be made for her maintenance and advancement in life out of the estate or notional estate, or both, of William Edward Quinton, late of 9/48A Queenscliff Road, Queenscliff in the State of New South Wales, (the deceased) in addition to the provisions made for her in the last will and testament of the deceased dated 27 April 1994. 2 By Cross Claim the defendant Luke William Quinton, the executor of the deceased's estate and son of the deceased, seeks an order pursuant to s 31 of the Act that the Court approve the plaintiff's release of her right to bring this action given in a Deed dated 10 October 1984 (the Cohabitation Deed). 3 The deceased was born on 1 April 1934 and died on 18 July 1998. Probate of the deceased's will was granted on 16 February 1999 and the plaintiff commenced the proceedings on 26 May 1999. 4 The matter was expedited by Bryson J on 24 September 1999 and heard by me on 6, 7 and 8 March 2000 when I reserved my judgment. Mr P. Hallen SC appeared for the plaintiff/cross defendant and Mr Studdy, of counsel, appeared for the defendant/cross claimant. 5 The deceased made the following provision for the plaintiff in his will made on 27 April 1994; 4. I GIVE my home unit premises situate at and known as 9/48A Queenscliff Road, Queenscliff to my Executor TO PERMIT my de facto spouse KAY LORRAINE RUSSELL to reside therein for a period of 12 months from the date of my death or for such lesser period of time as she wishes PROVIDED THAT she pays the rates and taxes levied on the home unit and keeps it in repair to my Executor's satisfaction AND when my said de facto spouse ceases to live in the said home unit it shall form part of the residue of my estate. 5. I GIVE: (a) To the said KAY LORRAINE RUSSELL the sum of $200,000. 6 Apart from three other gifts to relatives and a close friend totalling $20,000 the residue of the estate was given to the defendant. At the date of the hearing the total value of the residue of the estate, comprising three parcels of real estate, moneys from two bank accounts and rental from two of the properties was approximately $2.1 million.