Butcher v Balog [2017] NSWSC 1409

Supreme Court New South Wales

Medium Neutral Citation: Butcher v Balog [2017] NSWSC 1409 Hearing dates: 22 September, 11 October 2017 Date of orders: 19 October 2017 Decision date: 19 October 2017 Jurisdiction: Equity - Family Provision List Before: Parker J Decision: Subpoena set aside; subpoenaed parties joined as additional defendants; leave granted to plaintiff to amend claim so as to seek notional estate order; plaintiff's motion stood over to 31 October 2017 Catchwords: Civil Procedure – family provision – claim allegedly available to estate against third parties – whether subpoena may be issued to third parties – whether plaintiff may be permitted to bring a derivative suit against third parties – prejudice – imposition of terms Equity – estate's alleged interests in deceased's parents' properties – deceased's payment of funds to parents prior to purchase of property – no evidence of arrangements between deceased and parents – proprietary estoppel – deceased's contribution to construction of property – alleged promise and detriment inadequately pleaded Legislation Cited: Legal Profession Uniform Law Application Act 2014 (NSW), Sch 2 cl 4(2) Supreme Court Act 1970 (NSW), s 75 Succession Act 2006 (NSW), ss 59, 80(2)(a) Cases Cited: Alexander v Perpetual Trustees WA Ltd (2004) 216 CLR 109; [2004] HCA 7 Baumgartner v Baumgartner (1987) 164 CLR 137; [1987] HCA 59 El Sayed v El Hawach (2015) 88 NSWLR 214; [2015] NSWCA 26 Lewis v Condon (2013) 85 NSWLR 99; [2013] NSWCA 204 Milling v Hardie [2014] NSWCA 163 Ramage v Waclaw (1988) 12 NSWLR 84 Category: Procedural and other rulings Parties: Hayley Lorraine Butcher (Plaintiff) David Charles Balog (First Defendant) Phillip John Butcher (Second Defendant) Melvyn Patrick Butcher (Subpoenaed Party) Meryl Lorraine Butcher (Subpoenaed Party) Representation: Counsel: K Morrissey (Plaintiff) JT Johnson (First and Second Defendants) M Castle (Subpoenaed Parties)