Curran v Harvey [2012] NSWSC 276

Supreme Court New South Wales

Medium Neutral Citation: Curran v Harvey [2012] NSWSC 276 Hearing dates: 14, 15 March 2012 Decision date: 27 March 2012 Jurisdiction: Equity Division Before: Hallen AsJ Decision: (a) Having found that the Plaintiff is an eligible person, and that the provision made for her in the Will of the deceased is inadequate, the Plaintiff is to receive a lump sum of $310,000, to purchase accommodation, including to pay associated costs and disbursements of purchase; a capital sum of $250,000, which amount should provide capital and income to her, of which $50,000 should be paid within 28 days of these orders, to enable her to pay for furniture and whitegoods for the home that are required, and to pay any debts. That amount, if paid, should be retained by her solicitors, or other trustee, pending the purchase of the furniture and whitegoods and to pay debts. A further $50,000 (of the $250,000), together with any interest accrued thereon, should be paid to her at the end of each 12 month period that she remains out of prison. It follows that if she is able to stay out of prison for four consecutive 12 month periods, she will have received the balance of the capital sum. (d) If she is incarcerated at any time, the 12 month period before she will be entitled to the amount of $50,000, together with the interest accrued thereon, will commence on the day of her release from prison. (e) A separate fund of $85,000 (in addition to the $250,000), to be set aside to be used for paying for counselling sessions. However, to the extent that any part of that amount is not used for the purpose, within 5 years, or such other time as the court then determines, it is to be paid back to the deceased's estate to be divided between the beneficiaries in the percentages referred to below. (f) The part of the burden of the provision for the Plaintiff, that the beneficiary, Amanda should bear is 43.6%; the part of the burden that the beneficiary, Danielle, should bear is 36.7%; the part of the burden that that the beneficiary, Mr Ball, should bear is 10.4%; and the part of the burden the grandchildren beneficiaries should bear is 9.3%. In the event that Amanda and Danielle wish to leave untouched the share of the grandchildren, the burden of each will be increased by 4.65%. (g) Direct the parties to bring in short minutes to reflect these reasons. (h) If the parties are unable to reach agreement on the costs of the proceedings, any submissions as to costs can be dealt with at a time suitable to counsel and to the court. Catchwords: SUCCESSION - FAMILY PROVISION - The Plaintiff, a daughter of a former de facto partner of deceased seeks family provision order under Family Provision Act 1982 - Whole estate shared between natural daughters, a friend, identified grandchildren of the deceased - Allegations of sexual relationship between the Plaintiff and the deceased - Whether jurisdictional issue established, factors warranting the making of the Plaintiff's application, and if so, nature and quantum of provision to be made. Legislation Cited: Evidence Act 1995 Family Provision Act 1982 Social Security Act 1991 (Cth) Succession Act 2006 Succession Amendment (Family Provision) Act 2008 Uniform Civil Procedure Rules 2005 Cases Cited: Alexander v Jansson [2010] NSWCA 176 Allardice, Allardice v Allardice, In re (1909) 29 NZLR 959 Anasson v Phillips (NSWSC, 4 March, 1988, unreported) Anderson (deceased), Re (1975) 11 SASR 276 Baird v National Mutual Trustees Ltd & Attorney General for State of Victoria (Supreme Court of Victoria, 22 November 1995, unreported Bartlett v Coomber [2008] NSWCA 100 Blore v Lang [1960] HCA 73; (1960) 104 CLR 124 Bosch v Perpetual Trustee Co Ltd [1938] AC 463 Brown v Faggoter [1998] NSWCA 44 Buckland v Trustees Executors and Agency Co. Limited (1966) 40 ALJR 164 Buckland deceased, Re [1966] VR 404 Bull, Re; Bentley v Brennan [2006] VSC 113 CSG Limited v Fuji Xerox Australia Pty Ltd [2011] NSWCA 335 Cameron v Cameron [2009] SASC 27 Carey v Robson [2010] NSWCA 212 Churton v Christian (1988) 13 NSWLR 241 Collins v McGain [2003] NSWCA 190 Cooper v Dungan (1976) 50 ALJR 539 Crossman v Riedel [2004] ACTSC 127 Day v Couch (2000) NSWSC 230 Devereaux-Warnes v Hall (No 3) [2007] [2007] WASCA 235; (2007) 35 WAR 127 Diver v Neal [2009] NSWCA 54 Drayson v Drayson [2011] NSWSC 965 Durham v Durham [2011] NSWCA 62 Evans v Levy [2011] NSWCA 125 Fede v Dell'Arte [2010] NSWSC 1113 Foley v Ellis [2008] NSWCA 288 Fulop Deceased, Re (1987) 8 NSWLR 679 Galea v Bagtrans Pty Ltd [2010] NSWCA 350 Gardiner v Gardiner (NSWSC, 28 May 1998, unreported) Gilbert, In re The Will of (1946) 46 SR (NSW) 318 Goddard Elliott (a firm) v Fritsch [2012] VSC 87 Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490 Goodsell v Wellington [2011] NSWSC 1232 Gorton v Parks (1989) 17 NSWLR 1 Graziani v Graziani (NSWSC, 20 February 1987, unreported) Hampson v Hampson [2010] NSWCA 359 Hoadley v Hoadley (Supreme Court of New South Wales, 17 February 1987, unreported) Hodgson, Re (1886) 31 Ch D 177 Hughes v National Trustees Executors & Agency Co of Australasia Ltd (1979) 143 CLR 134 Hyland v Burbidge [2000] NSWSC 12 Jennings Dec'd, Re ([1993] EWCA Civ 10; [1994] Ch 286 Jones v Dunkel (1959) 101 CLR 298 Kay v Archbold [2008] NSWSC 254 Kembrey v Cuskelly [2008] NSWSC 262 Litchfield v Smith & Tingate [2010] VSC 466 Lumb v McMillan [2007] NSWSC 386 McCosker v McCosker [1957] HCA 52; (1957) 97 CLR 566 McKenzie v Topp [2004] VSC 90 MacGregor v MacGregor [2003] WASC 169 (28 August 2003) Madden-Smith v Madden [2012] NSWSC 146 Marks v Marks [2003] WASCA 297 Mayfield v Lloyd-Williams [2004] NSWSC 419 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170 Palaganio v Mankarios [2011] NSWSC 61 Palmer v Dolman; Dolman v Palmer [2005] NSWCA 361 Penfold v Perpetual Trustee [2002] NSWSC 648 Plunkett v Bull [1915] HCA 14; (1915) 19 CLR 544 Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19 Porthouse v Bridge [2007] NSWSC 686 Puckridge (dec'd), In the Estate of (1978) 20 SASR 72 Savic v Kim [2010] NSWSC 1401 Singer v Berghouse (No 2) [1994] HCA 40 Stern v Sekers; Sekers v Sekers [2010] NSWSC 59 Stiles v Joseph (NSWSC, 16 December 1996, unreported) Stott v Cook (1960) 33 ALJR 447 Taylor v Farrugia [2009] NSWSC 801 Thom v The Public Trustee (NSWSC, 2 April, 1992, unreported), Tsivinsky v Tsivinsky [1991] NSWCA 269 Vigolo v Bostin [2005] HCA 11 Vukic v Grbin; Estate of Grbin [2006] NSWSC 41 Walker v Walker (NSWSC, 17 May 1996, unreported) Warner v Hung, in the matter of Bellpac Pty Limited (Receivers and Managers Appointed) (In Liquidation) (No 2) [2011] FCA 1123 Weeks v Hrubala [2008] NSWSC 162 West v France [2010] NSWSC 845 Williamson v Williamson [2011] NSWSC 228 Texts Cited: Government Gazette No. 38, 20 February 2009 Category: Principal judgment Parties: Belinda Anne Curran (Plaintiff) Phillip William Harvey (Estate of the late Donald Leslie Julian) (Defendant) Representation: Counsel: Mr J Armfield; Mr GJ Smith (Plaintiff) Mr A Hill (Defendant) Solicitors: Harbour Law (Plaintiff) Cooney Harvey Doney (Defendant) File Number(s): 2010/240021