Vanderloo v Milne [2014] NSWSC 1932

Supreme Court New South Wales

Medium Neutral Citation: Vanderloo v Milne [2014] NSWSC 1932 Hearing dates: 3 July 2014, 21 August 2014 Date of orders: 19 December 2014 Decision date: 19 December 2014 Jurisdiction: Equity Division Before: Robb J Decision: (1) Order that the plaintiff's proceedings be dismissed (2) The plaintiff is to bear his own costs of the proceedings. (3) The parties are invited to make submissions as to what, if any, order should be made against the plaintiff in respect of the defendants' costs. (4) Subject to any order that will be made in response to order (3), the defendants' costs of the proceedings are to be paid out of the estate of the deceased on the indemnity basis. (5) Order that the exhibits may be returned forthwith in accordance with the Rules Catchwords: SUCCESSION - family provision and maintenance - plaintiff second husband of testator – marriage lasted 15 years – testator made will shortly before death – testator gave careful consideration to dividing her estate between her husband and her two sons – plaintiff received half of matrimonial home – matrimonial home property of testator before marriage – orders sought by plaintiff relatively small increment on plaintiff's financial circumstances before application made – provision in will for proper maintenance and advancement in life of plaintiff not inadequate – testator's sons have competing financial needs– application out of time – application dismissed Legislation Cited: Succession Act 2006 (NSW) Cases Cited: Allen v Allen [2012] NSWSC 140 Alexander v Jansson [2010] NSWCA 176 Aubrey v Kain [2014] NSWSC 15 Bladwell v Davis [2004] NSWCA 170 Chapple v Wilcox [2014] NSWCA 392 Epov v Epov [2014] NSWSC 1086 Grundel v Registrar-General (1990) 5 BPR 11,217 Luciano v Rosenblum (1985) 2 NSWLR 65 McCosker v McCosker (1957) 97 CLR 566 Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 20 Slack v Rogan; Palffry v Rogan [2013] NSWSC 522; (2013) 85 NSWLR 253 Thomas v Pickering; Byrne v Pickering [2011] NSWSC 572 Underwood v Gaudron [2014] NSWSC 1055 West v Mann [2013] NSWSC 1852 Category: Principal judgment Parties: Theo Vanderloo (plaintiff) David Patterson Milne (first defendant) Christopher Stuart Milne (second defendant) Representation: Counsel: K F Morrissey (plaintiff) R Brender (defendants)