Goodsell v Wellington & Ors [2011] NSWSC 1232

Supreme Court New South Wales

Medium Neutral Citation: Goodsell v Wellington & Ors [2011] NSWSC 1232 Hearing dates: 17, 18, 19 October 2011 Decision date: 04 November 2011 Jurisdiction: Equity Division Before: Hallen AsJ Decision: Having found that the Plaintiff is an eligible person and that the provision made for him in the Will of the deceased is inadequate, order that the Plaintiff receive, by way of provision, an interest-free advance on his share of the deceased's estate, of $200,000. The lump sum is to be repaid to the estate, in whole or in part, from the Plaintiff's share of the deceased's estate when the Princes Highway property is sold, in whole or in part. If the total of the Plaintiff's share of the deceased's estate, when ultimately realized, is insufficient to repay the whole of the amount of the advance, then he is not required to repay the balance remaining, which balance shall constitute part of the family provision order by way of absolute entitlement. The Defendants should be allowed an opportunity to decide the manner in which they will satisfy the payment of the advance, and, therefore, which part of the estate is to bear the burden of the order. Part of the advance ($20,000) should be paid within 14 days of the delivery of reasons, and the balance within 28 days of the making of orders reflecting the reasons, or within such other time as the parties agree, failing which, interest on any amount not so paid, should be paid, such interest to be calculated at the rate prescribed on unpaid legacies by the Probate & Administration Act 1898, from that date until the date of payment. The Plaintiff should vacate possession of the Princes Highway property simultaneously with the receipt of the balance ($180,000) of the amount the subject of the advance. If the parties are unable to reach agreement on the way in which the lump sum is to be paid, I shall hear further short submissions on which property should be designated as notional estate, and any consequential orders. Subject to any argument about costs, I would propose to make the usual order for costs. The Exhibits should be dealt with in accordance with the Uniform Civil Procedure Rules and the Court Books may be returned. The parties are to bring in short minutes. The proceedings are adjourned to a date to be fixed. Catchwords: The Plaintiff, an adult child of the deceased, applies for a family provision order under Chapter 3 of the Succession Act 2006 - Defendants named in the Summons are also adult children of the deceased - The lessee of land owned by the deceased at the date of her death joined as party Defendant - Whether provision made in Will of deceased inadequate and if so, whether order in favour of the Plaintiff should be made Legislation Cited: Civil Procedure Act 2005 Family Provision Act 1982 Powers of Attorney Act 2003 Probate & Administration Act 1898 Property (Relationships) Act 1984 Succession Act 2006 Succession Amendment (Family Provision) Act 2008 Uniform Civil Procedure Rules 2005 Cases Cited: Allardice, In re; Allardice v Allardice (1909) 29 NZLR 959 Blore v Lang (1960) 104 CLR 124 Bondelmonte v Blanckensee [1989] WAR 305 Bondy v Vavros (NSWSC, 29 August 1988, unreported) Bosch v Perpetual Trustee Co Ltd [1938] AC 463 Carey v Robson & Anor; Nicholls v Robson & Anor [2009] NSWSC 1142 Collins v McGain [2003] NSWCA 190 Cooper v Dungan (1976) 50 ALJR 539 Devereaux-Warnes v Hall [No 3] [2007] WASCA 235; (2007) 35 WAR 127 Dijkhuijs (formerly Coney) v Barclay (1988) 13 NSWLR 639 Diver v Neal [2009] NSWCA 54; (2009) 2 ASTLR 89 ERS Engines Pty Ltd v Wilson (1994) 35 NSWLR 193 Fiorentini v O'Neill [1998] NSWCA 79 Foley v Ellis [2008] NSWCA 288 Fung v Ye [2007] NSWCA 115 Goodman v Windeyer (1980) 144 CLR 490 Gorton v Parks (1989) 17 NSWLR 1 Hampson v Hampson [2010] NSWCA 359 Hastings v Hastings [2010] NSWCA 197 Hawkins v Prestage (1989) 1 WAR 37 Hoobin v Hoobin [2004] NSWSC 705 Howarth v Reed (NSWSC 15 April 1991, unreported) Hughes v National Trustees, Executors and Agency Co of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134 Kay v Archbold [2008] NSWSC 254 Kleinig v Neal (No 2) [1981] 2 NSWLR 532 Lloyd-Williams v Mayfield [2005] NSWCA 189 McCosker v McCosker (1957) 97 CLR 566 McGrath v Eves [2005] NSWSC 1006 McKenzie v Topp [2004] VSC 90 Maio v Sacco [2009] NSWSC 413 Mayfield v Lloyd-Williams [2004] NSWSC 419 Permanent Trustee Company Ltd v Fraser (1995) 36 NSWLR 24 Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1961) 107 CLR 9 Puckridge, Deceased, In the Estate of (1978) 20 SASR 72 Samsley v Barnes [1990] NSWCA 161; (1991) DFC 95-100 Sangster v Sangster as executor of the estate of the late Christobel Mary Sangster [2009] NSWSC 695 Shearer v The Public Trustee (NSWSC, 23 March, 1998, unreported) Singer v Berghouse (No 2) [1994] HCA 40; (1994) 181 CLR 201 Stern v Sekers; Sekers v Sekers [2010] NSWSC 59 Stott v Cook (1960) 33 ALJR 447 Taylor v Farrugia [2009] NSWSC 801 Vasiljev v Public Trustee [1974] 2 NSWLR 497 Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 Walker v Walker (NSWSC, 17 May 1996, unreported) Category: Principal judgment Parties: John Gordon Goodsell (Plaintiff) Judith Ann Wellington (first Defendant) Kenneth Norman Goodsell (second Defendant) Valda Lorraine Goodsell (third Defendant) Cadodeb Pty Ltd (fourth Defendant) Representation: Counsel: Mr M Gorrick (Plaintiff) Mr T Rickard (Defendants) Solicitors: RMB Lawyers with Kearns & Garside (Plaintiff) Marriott Oliver Solicitors (Defendants) File Number(s): 2010/277155