Steiner v Strang [2016] NSWSC 395

Supreme Court New South Wales

Medium Neutral Citation: Steiner v Strang [2016] NSWSC 395 Hearing dates: 19, 20, 21 November & 15 December 2014; 12 March 2015, 15 & 16 April 2015, 19 May 2015 (directions in chambers) Date of orders: 12 April 2016 Decision date: 12 April 2016 Jurisdiction: Equity Before: Slattery J Decision: The $1.2 million cheque the deceased wrote in April 2009 was a gift to her daughter and son-in-law. The deceased's estate has no entitlement to long service leave from the deceased's former employer under the Long Service Leave Act 1955. The estate owes the deceased's daughter and son-in-law $15,000. Catchwords: SUCCESSION – action by residuary beneficiary on behalf of estate for the recovery of monies claimed to be owed to an estate – executors unwilling to bring action – deceased worked in a bridal couturier business for approximately 25 years before her death.

GIFTS – two and a half years before she died, the deceased wrote a cheque in favour of her son-in-law for approximately $1.2 million – whether the deceased gifted the cheque monies to her son-in-law and daughter, or whether the cheque monies were a loan to them from the deceased.

EMPLOYMENT - beneficiaries claim the deceased was entitled under the Long Service Leave Act 1955 to long service leave in respect of her employment with a corporate entity controlling this business in which entity she held a substantial shareholding interest - whether the deceased was a 'worker" within the Act – whether the deceased worked continuously for the corporate entity – whether the deceased was entitled to long service leave.

RESTITUTION – the deceased requests her son-in-law to pay $15,000 to her son on account of the son's then anticipated medical expenses – whether the sum of $15,000 is recoverable by the son in restitution from the deceased's estate. Legislation Cited: Evidence Act 2005, s 78 Limitation Act 1969 Long Service Leave Act 1955, ss 3, 4(1), 4(2), 4(5) 4(9), 4(11), 7, 8, 12 Succession Act 2006, s 59 Uniform Civil Procedure Rules 2005, rr 6.20, 6.25 and 7.11(1) Cases Cited: Apand Pty Limited v Kettle Chip Co Pty Limited (1994) 52 FCR 474 A J Mills & Sons Proprietary Limited v Transport Workers' Union of New South Wales (2009) 187 IR 56 David Securities Pty Limited and Others v Commonwealth Bank of Australia (1992) 175 CLR 353 Dilosa v Latec Finance Pty Limited (1966) 84 WN (Pt 1) (NSW) 557; [1966] 1 NSWLR 259 Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95 Fabre v Arenalis (1992) 27 NSWLR 437 Fried v NAB (2001) 111FCR 322 Heydon v The Perpetual Executors Trustee and Agency Company (W.A.) Ltd (1930) 45 CLR 111 Bouts v Ellis (1853) 17 Beav. 121, 51 ER 978 George v Howard (1819) 146 ER 1089 Ho v Powell (2001) 51 NSWLR 572 Jones v Dunkel (1959) 101 CLR 298 McCausland v Surfing Hardware International Holdings Pty Ltd [2013] NSWSC 902 Hollis v Vabu Pty Ltd (2001) 207 CLR 21 O'Donnell v Reichard [1975] VR 916 Payne v Parker (1976) 1 NSWLR 191 Pink v Pink [1912] 2 Ch. 528 Schellenberg v Tunnel Holdings Pty Limited (2000) 200 CLR 121 Schmierer vTaouk [2004] NSWSC 345 Scott v Pauly (1917) 24 CLR 274 Shum Yip Properties Development Pty Ltd v Chatswood Investment and Development Co Pty Ltd (2002) 40 ACSR 619; [2002] NSWSC 13 Steele v Mirror Newspapers [1974] 2 NSWLR 348 Steiner v Strang [2014] NSWSC 1250 Voce v Deloraine [2012] NSWSC 1187 West v GIO (NSW) (1981) 148 CLR 62 Category: Principal judgment Parties: Plaintiff: John Steiner First Defendant: Kenneth Ross Strang Second Defendant: Jason Tang Third Defendant: Steiner Wilson & Webster Pty Ltd (ACN 003 140 823) Fourth Defendant: Wayne Porter Webster (Junior) Fifth Defendant: Lesley Margaret Webster Sixth Defendant: Kelly Lee Midgley Seventh Defendant: Robyn Gai Webster Representation: Counsel: Plaintiff: P.H. Blackburn-Hart SC; R. Jefferis Third to Sixth Defendants: M.K. Meek SC; R. Potter