Button v Lynch and ors [2002] NSWSC 1148

New South Wales Supreme Court

CITATION : Button v Lynch and ors [2002] NSWSC 1148 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 3012/00; 3015/00 HEARING DATE(S) : 29, 30, 31 May, 24 July 2002 Written submissions to 30 October 2002 JUDGMENT DATE : 29 November 2002

Justin Button, by his tutor Bradley Trent Button (Plaintiff 3012/00) Christine Button (Plaintiff 3015/00) Dennis John Edward Lynch (First Defendant) PARTIES : Janet Rose Johnson (Second Defendant) Dennis Leonard James Lynch (Third Defendant) Gregory John Lynch (Fourth Defendant) Deon Ibbett (Fifth Defendant) JUDGMENT OF : Master McLaughlin

COUNSEL : A. Bulley (Plaintiffs) K. Morrissey (1st, 2nd, 4th, 5th Defendants) SOLICITORS : Russell McLelland Brown, Lawyers (Plaintiffs) Johnston Brien, Solicitors (1st, 2nd, 4th, 5th Defendants) CATCHWORDS : Succession - Family Provision - Claims by adult daughter and by adult grandson (a disable person) - Financial and material circumstances of Plaintiffs - Nature of relationship of Plaintiffs with Deceased - Whether Plaintiffs have been left without adequate provision for their proper maintenance - Notional estate of Deceased - Whether Deceased entered into prescribed transactions - Competing claim of widower of Deceased, who is chief beneficiary - Trusts - Discretionary trusts - Absolute discretion in trustee to exercise power of appointment - Deceased and First Defendant were sole shareholders and sole directors of trustee and were principal beneficiaries of the trust - Trust was essentially a vehicle by which Deceased and First Defendant conducted their personal affairs - Whether a member of a class of beneficiaries has standing to seek relief in respect to alleged breaches of trust - In any event, relief sought would be a jejune and barren exercise - Whether parties have been unnecessarily joined. LEGISLATION CITED : Family Provision Act 1982 Wills, Probate and Administration Act 1898 Blore v Lang (1960) 104 CLR 124 Federal Commissioner of Taxation v Vegners (1989) 90 ALR 547 CASES CITED : Re Fulop Deceased (1987) 8 NSWLR 679 Karger v Paul [1984] VR 161 Re Londonderry's Settlement; Peat v Walsh [1965] Ch 918 Singer v Berghouse (1994) 181 CLR 201 DECISION : (1). I order that the proceedings be dismissed. (2). I order that the Plaintiff pay the costs of the First, Second, Fourth and Fifth Defendants, such costs to be on the party and party basis. (3). The exhibits may be returned.