SMITH v. LENNOX & ANOR [2004] NSWSC 1115

New South Wales Supreme Court

CITATION : SMITH v. LENNOX & ANOR [2004] NSWSC 1115 revised - 19/11/2004 HEARING DATE(S) : Tuesday 16 November 2004 JUDGMENT DATE : 23 November 2004 JURISDICTION: Equity JUDGMENT OF : Acting Master Berecry at 1 DECISION : 1. In addition to the provision in the will of the late Lorna Joan Walters there be paid to the plaintiff legacies provided for in the will for Sarah Kate Walters and Natalie Louisa Smith; 2. The defendants costs be paid out of the proceeds of sale of 2 Kilgour Avenue, Bar Beach; 3. The plaintiff pay her own costs; 4. The defendants pay the plaintiff's costs reserved by Bergin, J. on 8 November 2004; 5. The order made by Bergin, J. on 8 November 2004 restraining the sale of 2 Kilgour Avenue, Bar Beach be dissolved; 6. The plaintiff be released from her undertaking given to the court on 8 November 2004.

CATCHWORDS : Family Provision Act - further provision - daughter of deceased - provision for unencumbered property - relation with the deceased - inadequate provision - assistance towards purchase of house - consideration of relationship of sister and deceased - assistance provided during her lifetime by the deceased to plaintiff - whether court should accept minors' offer to forego legacy. LEGISLATION CITED : Family Provision Act 1982 Shearer v. The Public Trustee (Young, J. unreported 23 March 1998) CASES CITED : Fiorentini v.O'Neill (Cowdry, AJ. unreported 4 December 1998) Singer v. Berghouse (1994) 181 CLR 201 re The Minister for Immigration and Ethnic Affairs Ex parte Lai Qin (1997) 186 CLR 622 PARTIES : SMITH, Leslie Rhonda v. LENNOX, Donna Rae & ANOR FILE NUMBER(S) : SC 1351 of 2003 COUNSEL : Plaintiff: L. Ellison Defendant: M. Bridger SOLICITORS : Plaintiff: Turnbull Hill Lawyers Defendant: Bilbie Dan