Austin v NSW Trustee and Guardian [2016] NSWSC 1675

Supreme Court New South Wales

Medium Neutral Citation: Austin v NSW Trustee and Guardian [2016] NSWSC 1675 Hearing dates: 7 November 2016 Date of orders: 01 December 2016 Decision date: 01 December 2016 Jurisdiction: Equity Before: Hallen J Decision: The Court: 1. Not being satisfied that the Plaintiff is an eligible person, or that there are factors warranting the making of his application, orders that the Plaintiff's claim be dismissed. 2. Gives judgment for the Defendant/Cross-Claimant for possession of the whole of the land comprised in Certificate of Title, Folio Identifier xxx, being the land situated at, and known as xxx Edgbaston Road Beverly Hills, in the State of New South Wales. 3. Grants leave to the Defendant/Cross-Claimant to issue a writ of possession to enforce Order 2 forthwith. 4. Orders that execution of the writ of possession for the Beverly Hills property be stayed until midnight on 11 December 2016. 5. Orders that the Cross-Claim otherwise be dismissed. 6. Orders that any argument as to costs be listed on a date to be arranged. 7. Orders that the Exhibits should be dealt with in accordance with the Uniform Civil Procedure Rules 2005 (NSW). Catchwords: SUCCESSION - Claim by a grandchild of the deceased for a family provision order under Part 3 of Succession Act 2006 - The Defendant, the executor named in the Will of the deceased, to whom Probate was granted, opposes Plaintiff's claim – Whether Plaintiff an eligible person – If so, whether there are factors warranting the making of the Plaintiff's application – If eligibility and factors warranting the making of application established, whether family provision order should be made