Jacqueline May Isabella West v John Alexander Mann [2013] NSWSC 1852

Supreme Court New South Wales

Medium Neutral Citation: Jacqueline May Isabella West v John Alexander Mann [2013] NSWSC 1852 Hearing dates: 9 December 2013 Decision date: 11 December 2013 Jurisdiction: Equity Division Before: Kunc J Decision: Order for provision made Catchwords: FAMILY PROVISION AND MAINTENANCE - Principles upon which relief granted - Adult brother and sister - Succession Act 2006, ss 59, 60 Legislation Cited: Succession Act 2006 (NSW) Cases Cited: Andrew v Andrew [2012] NSWCA 308; (2012) 81 NSWLR 656 Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 Sahab Holdings Pty Ltd v Registrar-General [2011] NSWCA 395 Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 Vidler v Ivimey [2013] NSWSC 1605 Category: Principal judgment Parties: Jacqueline May Isabella West (Plaintiff) John Alexander Mann (Defendant) Estate of Pavlova May Caine Representation: Counsel: Mr H.S. Packer (Plaintiff) Mr L. Ellison SC (Defendant) Solicitors: Bolzan & Dimitri (Plaintiff) Roberts Mann (Defendant) File Number(s): 2013/44567 Publication restriction: No

Judgment

Summary 1The plaintiff is the daughter of the late Pavlova May Caine ("Mrs Caine"). Mrs Caine died on 16 February 2012. By her will made on 21 December 2010 Mrs Caine left her entire estate to the plaintiff's brother. 2Without disrespect, I shall refer to the plaintiff and her brother as "Jacqueline" and "Phillip" respectively. They are the only eligible beneficiaries in the estate. 3The defendant ("Mr Mann") is the solicitor executor appointed under Mrs Caine's will. 4The estate comprises little more than Mrs Caine's house at Grose Wold (the "House"). Phillip has lived in the House for most of his life. 5By summons filed on 13 February 2013, Jacqueline applies for provision out of her mother's estate under s 59 of the Succession Act 2006 (NSW) (the "Act"). Mr H.S. Packer of Counsel appeared for Jacqueline. Mr L. Ellison of Senior Counsel appeared for Mr Mann. The case was argued fully but with exemplary economy, such that it occupied less than a day. At the conclusion of the hearing I made these orders: The Court: 1. Having found that the plaintiff, Jacqueline May Isabella West, is an eligible person, and that inadequate provision has been made for her proper maintenance or advancement in life, orders that provision be made for her from the estate of the late Pavlova May Caine by payment of a sum calculated as follows: (a) $115,000 or such lesser amount as is available after the defendant trustee has first paid the Son's Legacy to Phillip Newton Christian Caine; and (b) if the amount available in the nett residuary estate exceeds $460,000, 25% (twenty-five percent) of that excess. 2. Orders that in these orders "Son's Legacy" means $345,000 less any costs incurred by the defendant trustee in obtaining vacant possession of the premises known as 332 Grose Wold Road, Grose Wold. 3. Orders that the plaintiff's costs of and incidental to these proceedings be paid out of the estate on the ordinary basis assessed as a lump sum of $37,848.00. 4. Orders that the defendant's costs of and incidental to these proceedings be paid out of the estate on the indemnity basis assessed as a lump sum of $37,500.00. 5. Orders that the exhibits be returned to the parties' legal representatives upon publication of the Court's reasons to be held by them or the parties in accordance with Practice Note SC Gen 18. 6These are the reasons for those orders.