Whalen v Byrnes [2003] NSWSC 915

New South Wales Supreme Court

CITATION : Whalen v Byrnes [2003] NSWSC 915 HEARING DATE(S) : 27, 28 May 2003 JUDGMENT DATE : 9 October 2003 JURISDICTION: Equity Division JUDGMENT OF : Master McLaughlin DECISION : (1) I stand the matter over to a date to be fixed by arrangement with my Associate, for the bringing in of Short Minutes of Order to reflect my foregoing conclusions.

CATCHWORDS : Succession - Family Provision - Claim by adult brother - Proceedings not brought within prescribed period - Exercise of Court's discretion to extend time - Plaintiff and Deceased conducted a dairy farm in partnership upon land most of which was held by them in co-ownership - Plaintiff an eligible person - Whether there are factors which warrant the making of the application - Without the land of the Deceased and the land held in co-ownership the dairy farm business is not viable - By his will the Deceased left his entire estate to an order of Catholic nuns - No contact between Deceased and beneficiary during lifetime of the Deceased - Competing claim of beneficiary - Nature of order for provision - Whether Plaintiff should be given an absolute interest or only a life estate in some or all of the land upon which the dairy farm was conducted. LEGISLATION CITED : Family Provision Act 1982 Dare v Furness (1998) 44 NSWLR 493 CASES CITED : Leue v Reynolds (1986) 4 NSWLR 590 Warren v McKnight (1996) 40 NSWLR 390 White v Barron (1980) 144 CLR 431 PARTIES : Leo Keith Whalen (Plaintiff) Dennis William Byrnes (Defendant) FILE NUMBER(S) : SC 2152/02 COUNSEL : B. Sharpe (Plaintiff) M. Willmott (Defendant) SOLICITORS : Whitelaw McDonald, Solicitors (Plaintiff) Sheridan & Stubbs, Solicitors (Defendant)