Charnock v Handley [2011] NSWSC 1408

Supreme Court New South Wales

Medium Neutral Citation: Charnock v Handley [2011] NSWSC 1408 Hearing dates: 21 November 2011 Decision date: 16 December 2011 Jurisdiction: Equity Division Before: Hallen AsJ Decision: (a) Order that the time for making the Plaintiffs' application be extended up to and including 1 February 2011, the date of the filing of the Summons. (b) Having found that each Plaintiff is an eligible person and that the provision made for her in the Will of the deceased is inadequate, order that the first Plaintiff is to receive out of the notional estate of the deceased, a lump sum of $9,665 and the second Plaintiff is to receive a lump sum of $7,750. (c) Order that each of the lump sums should be paid within 28 days, or such other time as the parties agree, failing which, interest on any amount not so paid, should be paid at the rate prescribed for the purposes of s 84A(3) of the Probate and Administration Act 1898, as the rate of interest on legacies, calculated from that date until the date of payment. (d) Order that the Plaintiffs' costs of the proceedings assessed and agreed at $5,000, should be paid out of the property designated as notional estate of the deceased within 28 days, or such other time as the parties agree, failing which, interest at the same rate should be paid, calculated from that date until the date of payment. (e) Make no order as to the Defendant's costs to the intent that he will pay his own costs of the proceedings. (f) Being satisfied that as a result of the distribution of the deceased's estate, property became held by the Defendant, order that the amount of $22,415, forming part of the amount held by the Defendant in his Navigator Personal Retirement Fund, be designated as notional estate and that such sum be paid to the Plaintiffs for the purposes of satisfying the family provision order for each of them and their costs of the proceedings. (g) Order that each of the lump sums, costs, and any interest accrued thereon should constitute a charge on the said Navigator Personal Retirement Fund until it is paid. (h) Order that exhibits and subpoenaed material may be returned forthwith; any exhibits returned must be retained intact by the party or person that produced the material until the expiry of the time to file an appeal, or until any appeal has been determined. Catchwords: Claims by adult children of the deceased for family provision order under Succession Act 2006 out of the estate or notional estate of the deceased and an order designating property as notional estate - The deceased provided for the whole of his estate to pass to a friend - No provision for Plaintiffs - Estate fully distributed to Defendant - Plaintiffs' application out of time - Whether property should be designated as notional estate - Whether special circumstances established - Nature of property designated Legislation Cited: Family Provision Act 1982 Probate and Administration Act 1898 Property (Relationships) Act 1984 Succession Act 2006 Succession Amendment (Family Provision) Act 2008 Uniform Civil Procedure Rules 2005 Cases Cited: Alexander v Jansson [2010] NSWCA 176 Barna v Barna [2008] NSWSC 1402 Blyth v Spencer; Spencer v Neville [2005] NSWSC 653 Bondelmonte v Blanckensee [1989] WAR 305 Burton v Moss [2010] NSWSC 163 Campbell v Chabert-McKay [2010] NSWSC 859 Carr v Finance Corporation of Australia Ltd (No. 1) [1981] HCA 20; (1981) 147 CLR 246 Carstrom v Boesen [2004] NSWSC 1109 Cooper v Dungan (1976) 50 ALJR 539 Collins v McGain [2003] NSWCA 190 Cetojevic v Cetojevic [2006] NSWSC 431 De Winter v Johnstone (NSWCA, 23 August 1995, unreported) Dobb v Hacket (1993) 10 WAR 532 Durham v Durham [2010] NSWSC 389 Gorton v Parks (1989) 17 NSWLR 1 Hampson v Hampson [2010] NSWCA 359 Hawkins v Prestage (1989) 1 WAR 37 Hughes v National Trustees, Executors and Agency Co of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134 John v John [2010] NSWSC 937 Kavalee v Burbidge; Hyland v Burbidge (1998) 43 NSWLR 422 Kleinig v Neal (No 2) [1981] 2 NSWLR 532 Lewis v Lewis [2001] NSWSC 321 McCosker v McCosker (1957) 97 CLR 566 McGrath v Eves [2005] NSWSC 1006 McKenzie v Topp [2004] VSC 90 Mansfield v Mansfield [2003] WASC 214 Marland (decd), In re [1957] VR 338 Palaganio v Mankarios [2011] NSWSC 61 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 Randall v The Public Trustee (2000) NSWSC 500 Richardson v Rearden [2006] NSWSC 1252 Singer v Berghouse (No 2) [1994] HCA 40; (1994) 181 CLR 201 Smith v Woodward (NSWSC, 9 September 1994, unreported) Sophron v The Nominal Defendant (1957) 96 CLR 469 Stern v Sekers; Sekers v Sekers [2010] NSWSC 59 Szlazko v Travini [2004] NSWSC 610 Taylor v Farrugia [2009] NSWSC 801 Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 Walker v Walker (NSWSC, 17 May 1996, unreported); Zirkler v McKinnon [2002] NSWSC 285 Texts Cited: Macquarie Dictionary Oxford Dictionary Category: Principal judgment Parties: Lynda Charnock (first Plaintiff) Sara Stockwell (second Plaintiff) Robert Handley (Defendant) Representation: Counsel: Dr C Davidson (Solicitor) (Plaintiffs) Mr L Ellison SC (Defendant) Solicitors: Darryl Perkins Solicitors (Plaintiffs) Roberts Mann Solicitors (Defendant) File Number(s): 2011/39763