Justyn Marcus Ng v Neville Mark Morgan & Anor; Selena Natanie Ng v Morgan; Commonwealth Bank of Australia v Neville Mark Morgan in his capacity as Administrator of the estate of the late Dell Smith [2014] NSWSC 536

Supreme Court New South Wales

Medium Neutral Citation: Justyn Marcus Ng v Neville Mark Morgan & Anor; Selena Natanie Ng v Morgan; Commonwealth Bank of Australia v Neville Mark Morgan in his capacity as Administrator of the estate of the late Dell Smith [2014] NSWSC 536 Hearing dates: 28, 29 30 August, 2, 13, 18, 19, 20 & 25 September, 8 November 2013 Decision date: 08 May 2014 Jurisdiction: Equity Division Before: Slattery J Decision: An order for provision made in the Succession Act proceedings for the plaintiffs to receive the property in which they are now living, from the estate of the deceased. Reduction in Selena's claim on account of legal costs incurred by the estate due to her propounding of a forged will. Stay against the bank's order for possession is continued for 60 days to allow final orders to be made in the Succession Act proceedings. Catchwords: SUCCESSION - family provision - two grandchildren, Selena and Justyn Ng, claim against the estate of their maternal grandmother under Succession Act, Part 3.2 - plaintiffs are eligible persons under Succession Act, s 57(e) - whether plaintiffs were at any time wholly or partly dependent on the deceased, and if so for what period - whether adequate provision made for proper maintenance, education and advancement in life of the plaintiffs under the will of the deceased - whether Succession Act, s 60 factors warranting the making of an order for provision are established - what order for provision should be made - whether the plaintiffs should have an order for provision in the form of an interest in the property in which they are now living, or a legacy, or both.

MORTGAGE - one of three parcels of the deceased's real estate mortgaged to the Commonwealth Bank -estate defaults to the bank - the bank obtains an order for possession - interim stay granted against bank executing order for possession pending the outcome of the Succession Act proceedings - whether the stay should be continued. Legislation Cited: Civil Procedure Act 2005 (NSW), s 98(4)(c) Family Provision Act1982 (NSW), s 6 Succession Act 2006 (NSW), ss 57, 59, 60 Cases Cited: Amaca Pty Ltd v Novek (2009) 9 DDCR 199 Ball v Newey (1988) 13 NSWLR 489 Bearns v Bearns-Hayes [1997] NSWSC BC970286 Brown v Faggoter [1998] NSWCA 44 Churton v Christian (1988) 13 NSWLR 241 Diver v Neal [2009] NSWCA 115 Dridi v Fillmore [2001] NSWSC 319 Drury v Smith [2012] NSWSC 1067 Evans v Levy [2011] NSWCA 125 Hayes v Marquis [2008] NSWCA 10 Kauri Timber Co (Tas) Pty Ltd v Reeman (1973) 128 CLR 177 Meers v Permanent Trustee Co Ltd [2000] NSWSC 1108 Morgan v Public Trustee [1999] NSWSC 1112 Penfold v Perpetual Trustee [2002] NSWSC 648 Petrohilos v Hunter (1991) 25 NSWLR 343 Porthouse v Bridge [2007] NSWSC 686 Re: Fulop Deceased (1987) 8 NSWLR 679 Sammut v Kleeman [2012] NSWSC 1030 Simons v Perpetual Trustee Co Ltd [2005] NSWSC 223 Singer v Berghouse (No. 2) (1994) 181 CLR 201 Wilcox v Wilcox [2012] NSWSC 1138, Wilcox v Wilcox (No. 2) [2014] NSWSC 88 Zirkler v McKinnon [2002] NSWSC 285 Category: Principal judgment Parties: (2011/360941) Plaintiff: Justyn Marcus Ng First Defendant: Neville Mark Morgan Second Defendant: Deborah Shireen Curnow