Ford v Simes [2008] NSWSC 1120

New South Wales Supreme Court

CITATION : Ford v Simes [2008] NSWSC 1120

HEARING DATE(S) : 22/10/08

JUDGMENT DATE : 19 December 2008

JURISDICTION : Equity Division

JUDGMENT OF : Macready AsJ at 1

CATCHWORDS : Family Provision. Application by adult son at present in prison. Son sees the deceased once in the last 14 years of deceased's life. Application out of time and after distribution of estate. Plaintiff being a felon needs leave to bring proceedings. Consideration of whether there were any special circumstances as required by s28(5)(d) of the Family Provision Act. Held there were none and proceedings dismissed.

PARTIES : Stuart Cecil Ford v Natalie Ann Vaisey Simes

FILE NUMBER(S) : SC 2091/2007

COUNSEL : Mr RD Marshall for plaintiff Mr CP Locke for defendant

SOLICITORS : Patey & Murphy Solicitors for plaintiff AE Dunne solicitor for defendant

- 1 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

ASSOCIATE JUSTICE MACREADY

Friday 19 December 2008

2091 of 2007 STUART CECIL FORD v NATALIE ANN VAISEY SIMES JUDGMENT 1 HIS HONOUR: This is an application under the Family Provision Act 1982 in respect of the estate of the late Cecil Means Ford who died on 16 March 2004 aged 90 years. The deceased was survived by his children the plaintiff and the defendant. His former wife, Gladys Dorothy Ford, who died on 8 October 2004, also survived him. Last will of the deceased 2 The deceased made his last will on 18 December 2000. Under his will he appointed the defendant, his daughter, his executor and trustee and gave her the whole of his estate. Assets in the estate 3 The substantial asset in the estate was a number of shops at Wilson Road, Mount Hutton which are presently valued at $1.1 million. The deceased had a small sum in various bank accounts which have been collected. After administration expenses and collection of the bank accounts the defendant received $2,262.19. The realty was transferred to the sole beneficiary prior to 30 June 2004. Family history 4 The plaintiff, Stuart Cecil Ford, was born in Merewether, Newcastle in September 1953 and his sister and the defendant, Natalie Ann Vaisey Simes, was born in July 1957. 5 In 1963 their parents separated and the deceased went to live in his dance studio in Beaumont Street, Hamilton where he stayed until 1969. During this time he would come home to shower and use other facilities. 6 In 1966 the deceased was put on 'good behaviour' bond for alleged violence towards his wife. 7 In 1966 the plaintiff attended Newcastle Boys High School where he attained an interest in cinema projection. The deceased purchased the plaintiff's first cinema projector which the plaintiff set up in the shed at his mother's home. 8 In 1969 the plaintiff moved into the studio with the deceased for a few weeks until as a result of court proceedings he returned to live with his mother until March 1970. 9 In 1969 the plaintiffs' parents commenced divorce proceedings and in due course they were divorced. 10 In 1969 the deceased closed the dance studio in Cardiff which he had operated for many years and moved to Main Road, Cardiff. 11 At the end of 1969 the plaintiff left school. He commenced an apprenticeship which was not successful. In February 1970 he commenced another apprenticeship this time in motor body building at a motor car dealership. In March 1970 he moved to a boarding house at Hamilton. 12 In 1971 the plaintiff left the car dealership and began his own business showing movies in clubs using his own projection equipment. 13 In August 1971 the plaintiff obtained his drivers licence. The deceased gave him a Morris 1100 motor vehicle which he later traded in for a Ford Falcon motor vehicle purchased with a loan guaranteed by the deceased. 14 In that year the deceased moved from his Cardiff home to Mount Hutton to live in a flat at his brother Harry's house.