Gardiner v Gardiner [2014] NSWSC 435

Supreme Court New South Wales

Medium Neutral Citation: Gardiner v Gardiner [2014] NSWSC 435 Hearing dates: 30 & 31 July 2013 and 18 October 2013 Decision date: 14 April 2014 Jurisdiction: Common Law Before: Robb J Decision: (1)Grant administration of the estate of the late Dulcie Eva Gardiner under s 91(2) of the Succession Act 2006 (NSW) to the defendant, Raymond James Gardiner, for the purpose only of permitting the application in these proceedings to be dealt with. (2)Order that the will of the late Dulcie Eva Gardiner made on 5 November 1989 be varied so that the assets of her estate available to be distributed to the beneficiaries, including after payment of the costs referred to in order (3), be distributed in the proportions - (a)Janette Susan Gardiner - 55 % (b)Raymond James Gardiner - 19 % (c)Dianne Joan Bowman - 26 %. (3)Order that the costs of the parties to the proceedings be paid out of the estate of the late Dulcie Eva Gardiner on the trustee basis, with the effect that any party who has paid legal costs from the party's own funds shall be reimbursed, save that the plaintiff shall bear personally $30,000 of the legal costs that she has incurred in these proceedings. (4)Order for the return of exhibits and subpoenaed material as set out in par 219. Catchwords: SUCCESSION - family provision and maintenance - failure by deceased to make sufficient provision for the plaintiff - whether the other beneficiaries circumstances and needs reduce the plaintiff's claim Legislation Cited: Succession Act 2006 (NSW) ss 57 - 61, 91 Family Provision Act 1982 (NSW) ss7, 9 Cases Cited: Aubrey v Kain [2014] NSWSC 15 Dudic v Jakovljevic [2014] NSWSC 169 Andrew v Andrew [2012] NSWCA 308; (2012) 81 NSWLR 656 Phillips v James [2014] NSWCA 4 Singer v Berghouse (1994) 181 CLR 201 Vigolo v Bostin [2005] HCA 11; (2005) 201 CLR 191 Grey v Harrison [1997] 2 VR 359 Alexander v Jansson [2010] NSWCA 176 McCosker v McCosker (1957) 97 CLR 566 Butler v Morris [2012] NSWSC 748 Gorton v Parks (1989) 17 NSWLR 1 Slack v Rogan; Palffry v Rogan [2013] NSWSC 522 Texts Cited: JD Heydon and MJ Leeming, Jacobs' Law of Trusts in Australia (7th ed, 2006, LexisNexis Butterworths) Category: Principal judgment Parties: Janette Susan Gardiner (plaintiff) Raymond James Gardiner as Administrator of the Estate of the Late Dulcie Eva Gardiner (defendant) Representation: Counsel: J J Loofs (plaintiff) M B Evans (defendant)