Phillip Seeto v Kim Yum Bong Seeto & Ors [2013] NSWSC 1232

Supreme Court New South Wales

Medium Neutral Citation: Phillip Seeto v Kim Yum Bong Seeto & Ors [2013] NSWSC 1232 Hearing dates: 26, 27 August 2013 Decision date: 28 August 2013 Jurisdiction: Equity Division Before: Slattery J Decision: Plaintiff granted extension of time to bring family provision proceedings. Wiley Park property designated as notional estate of the deceased. An order for provision by way of a legacy to the plaintiff in the sum of $400,000. Catchwords: SUCCESSION - deceased died in 1998 - leaving his estate to a corporate trustee of a family trust - deceased's wife died in 2013 - deceased's younger son and executor in control of the family trust - deceased's older son brings an out of time application under Family Provision Act 1982 - plaintiff has no contact with his parents for 10 years - dispute as to the extent of family reconciliation - whether "sufficient cause" shown within Family Provision Act s 16(3) for application not having been made within time - plaintiff believed that his father's estate passed to his mother - whether executor aware of and contributed to the plaintiff's belief and remained silent - whether plaintiff was misled - whether prejudice due to delay - estate distributed - whether Family Provision Act 28(5)(d) "special circumstances" exist to justify making an order designating notional estate - whether plaintiff left without adequate provision - whether an order for provision should be made. Legislation Cited: Family Provision Act 1982 Cases Cited: Bearns v Bearns-Hayes (unreported 6 May 1997) Zirkler v McKinnon [2002] NSWSC 285 John v John [2010] NSWSC 937 Campbell v Chabert-McKay [2010] NSWSC 859 Singer v Berghouse (No 2) (1994) 181 CLR 201 Re Fulop (dec'd) (1987) 8 NSWLR 679 Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 Taylor v Farrugia [2009] NSWSC 801 Mayfield v Lloyd-Williams [2004] NSWSC 419 Anderson v Teboneras [1990] VR 527 Category: Principal judgment Parties: Plaintiff: Phillip Seeto Defendants: Kim Yum Bong (Raymond) Seeto, Wing On Investments Pty Limited Representation: Counsel: Plaintiff: M Gorrick Defendant: L Ellison SC Solicitors: Plaintiff: Vincent Butcher Defendants: Warren Smith, Macpherson + Kelley Lawyers (Sydney) File Number(s): 2011/405719