TS by his tutor PS v Ian Raymond Malouf [2010] NSWSC 630

New South Wales Supreme Court

CITATION : TS by his tutor PS v Ian Raymond Malouf [2010] NSWSC 630

HEARING DATE(S) : 04.03.10, 05.03.10

JUDGMENT DATE : 15 June 2010

JUDGMENT OF : Nicholas J

DECISION : the amended statement of claim be dismissed

CATCHWORDS : TRUSTS AND TRUSTEES – removal of trustee – application for removal of sole trustee – infant beneficiary – whether trustee's delay in contributing to beneficiary's living expenses and relationship between trustee and beneficiary's father justified removal – whether welfare of beneficiary adversely affected – turns on facts – no question of principle - SUCCESSION – application for provision under s 7 Family Provision Act – whether any evidence that testatrix's provision for beneficiary was inadequate under s 9(2) – no question of principle

LEGISLATION CITED : Family Provision Act 1982

CATEGORY : Principal judgment

Craven-Sands v Koch [2000] NSWSC 374 Letterstedt v Broers (1884) 9 App Cas 371 CASES CITED : Miller v Cameron (1936) 54 CLR 572 See v Hardman [2002] NSWSC 287 Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201

TEXTS CITED : Lewin on Trusts 2008 Ed

PARTIES : TS (by his tutor PS) - plaintiff Ian Raymond Malouf - defendant

FILE NUMBER(S) : SC 08/279102

COUNSEL : G P McNally SC - plaintiff L Ellison SC - defendant

SOLICITORS : Matthews Dooley & Gibson - plaintiff Bartier Perry - defendant

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

Nicholas J

15 June 2010

08/279102 TS by his tutor PS v Ian Raymond Malouf JUDGMENT 1 His Honour: In these proceedings the plaintiff by his tutor seeks an order that the defendant be removed as the trustee of the estate of Kim Marie Malouf (the testatrix), alternatively, other orders for relief in relation to the estate including an order for provision under s 7 Family Provision Act 1982 (the Act). 2 The principal beneficiary of the estate is the plaintiff. He is the son of the tutor (Paul) and the testatrix, and was born on 26 October 2005. The testatrix died on 15 December 2006 aged 44 years. By her informal will made on 9 September 2005 she appointed the defendant, her brother, as executor. Probate was granted to the defendant on 24 August 2007. 3 Relevantly, the will included the following: "In the event of my death I appoint Ian Raymond Malouf to be the execetor [sic] of my will. Assets Jiwana Pty Ltd XX XX Street XXXX. XX XX Street XXXX. I leave both of these properties to my son and all income and profits from this company to him.