Straede v Eastwood & Anor [2003] NSWSC 280

New South Wales Supreme Court

CITATION : Straede v Eastwood & Anor [2003] NSWSC 280 HEARING DATE(S) : 1 and 2 April, 2003 JUDGMENT DATE : 2 April 2003 JURISDICTION: Equity Division JUDGMENT OF : Palmer J DECISION : Orders made modifying effect of forfeiture rule in whole as sought in Summons - Plaintiff to pay own costs of application - Defendants to have costs out of the estate.

CATCHWORDS : FORFEITURE ACT - FORFEITURE RULE - RELEVANT CONDUCT - IMMORALITY - Plaintiff's wife killed in motor car accident in which Plaintiff was driver - Plaintiff pleaded guilty to dangerous driving causing death - Plaintiff applies for modification order under Forfeiture Act to permit him to receive benefit of dispositions in wife's will - other beneficiaries oppose order - Plaintiff and wife lived in ménage à trois for twenty years prior to wife's death - whether Plaintiff's "immorality" a relevant aspect of the Plaintiff's "conduct" to which the Court must have regard under s.5(3)(a) Forfeiture Act - principles discussed. - HELD: Conduct of offender to which the Court must have regard under s.5(3)(a) is conduct which has some bearing upon the circumstances in which the deceased was killed and upon the culpability of the offender - conduct during the marriage of the Plaintiff and the deceased had no bearing upon the circumstances of the deceased's death and was irrelevant. - FORFEITURE ACT - RELEVANT MATTERS - Needs of other beneficiaries and wishes of deceased - whether and to what extent relevant - principles discussed. - HELD: Needs of other beneficiaries and wishes of deceased not relevant in circumstances of the case. - FORFEITURE ACT - COSTS - Whether each party should have costs out of the estate - principles discussed. - HELD: Plaintiff to pay own costs - other parties to have costs of estate. - Crimes Act 1900 (NSW) - s.52A(1c) - Forfeiture Act 1995 (NSW) - s.3, s.4, s.5, s.6 LEGISLATION CITED : - Family Provision Act 1982 (NSW) - Jurisdiction of Courts (Foreign Land) Act 1989 (NSW) - s.4 - Property (Relationships) Act 1984 (NSW) - Wills, Probate and Administration Act 1898 (NSW) - Beresford v Royal Insurance Company Ltd [1937] 2 KB 197 - Dunbar v Plant [1997] 4 All ER 289 CASES CITED : - Re K (deceased) [1985] 1 Ch 85 - Lenaghan-Britton v Taylor (unrep., NSWSC 26 May 1996, Hodgson CJ in Eq) - S-T v J [1997] 3 WLR 1287 - Vasiljev v Public Trustee [1974] 2 NSWLR 497 John Oswald Straede - Plaintiff PARTIES : Terence John Eastwood - First Defendant Debra Michele Myors - Second Defendant FILE NUMBER(S) : SC 4233/01 L.J. Ellison, W. Wilcher - Plaintiff COUNSEL : S. Marantelli - First Defendant G.B. Johnston - Second Defendant Macedone Christie Willis - Plaintiff SOLICITORS : Eggleston Mitchell Lawyers - First Defendant Hicks & Oakley - Second Defendant