Ellens v Fleming & Anor (No. 2) [2017] NSWSC 1804

Supreme Court New South Wales

Medium Neutral Citation: Ellens v Fleming & Anor (No. 2) [2017] NSWSC 1804 Hearing dates: 4, 11 & 13 December 2017 Date of orders: 19 December 2017 Decision date: 22 December 2017 Jurisdiction: Equity Before: Slattery J Decision: Ancillary orders made pursuant to Family Provision Act 1982, s 15 to enable further effect to be given to the Court's orders of 2 September 2016, to facilitate the sale of the Randwick Property. If the plaintiff provides cleared funds of $625,000 to the first defendant, the first defendant must accept that payment in full discharge and satisfaction of the agreement recorded in Order 6-10 inclusive and 11-24 inclusive of the 2 September 2016 orders. Catchwords: SUCCESSION - Family Provision – settlement – proceedings settle on 2 September 2016 upon terms providing for the transfer of certain property to the plaintiff from the estates of each of his parents (represented by the first and second defendants) upon certain conditions as to time and the consideration to be paid - and in default of those conditions being satisfied the parties agree to the sale of the property by auction – conditions not complied with – disagreement between the parties as to course now to be followed – one wants sale to himself to proceed – other wants sale by pubic auction – each claims the 2 September orders justifies the course chosen - proper construction of the 2 September 2016 orders - whether the Court may make further orders under Family Provision Act 1982, s 15 and/or Succession Act 2006, s 66 adjusting the rights of the parties so as to permit the plaintiff to purchase the property Legislation Cited: Civil Procedure Act 2005, s 60 Family Law Act 1975 (Cth) Family Provision Act 1982, s15 Imperial Acts Application Act 1969, s 13 Matrimonial Causes Act 1959 (Cth), s 87(1) Real Property Act 1900, s 138(1) Succession Act 2006, ss 58(2), 59, 66 Cases Cited: Australian Hardboards Limited v Hudson Investment Group Ltd (2007) 70 NSWLR 201 Bull v Wimble (2004) 12 BPR 22,223 Clark Equipment Credit of Australia Ltd v Como Factors Pty Limited [1988]14 NSWLR 552 Ellens v Fleming & Anor [2017] NSWSC 607 Fylas Pty Limited v Vynal Pty Limited [1992] 2 Qd R 593 Gould v Purtle [2014] NSWSC 493 Wilson v Porada; The Estate of Peter Wolfgang Porada, late of Pericoe (No. 2) [2017] NSWSC 1362 Category: Consequential orders (other than Costs) Parties: Counsel: