Wise v Barry; The Estate of Robyn Margaret Wise [2018] NSWSC 1726

Supreme Court New South Wales

Medium Neutral Citation: Wise v Barry; The Estate of Robyn Margaret Wise [2018] NSWSC 1726 Hearing dates: 15 – 16 October 2018 Date of orders: 14 November 2018 Decision date: 14 November 2018 Jurisdiction: Equity Before: Hallen J Decision: Parties to provide the Court with Short Minutes of Order reflecting these reasons. The proceedings will then be adjourned for any argument on costs. Catchwords: SUCCESSION — Executors and administrators — Proceedings against co-executor — Removal sought of the co-executor by another executor to both of whom Probate had been granted — Significant delay in the administration of estate — Defendant executor has not vacated the property which comprises the primary asset of the estate — Possession of real property sought — Occupation fee or mesne profits also sought in amended Summons but not pursued following conclusion of the proceedings

SUCCESSION — FAMILY PROVISION — Claim for a family provision order by Defendant in Cross-Summons — No dispute as to the Defendant's eligibility as a person with whom the deceased was living in a de facto relationship at the time of her death — Proceedings not commenced within time prescribed by Act — No consent to extension of time — Whether sufficient cause shown — Whether conscious and deliberate decision made by Defendant in not commencing proceedings within time — Unconscionable conduct of Defendant — Prejudice suffered by Plaintiff and other beneficiary due to delay in each receiving his entitlement under Will — Competing claim of the Plaintiff and another beneficiary, each of whom is an adult child of the deceased — Small estate in value — Provision made by deceased to Defendant in Will of half of the value of the real estate — Court not satisfied there was sufficient cause shown for the application being made out of time — Conclusion in part on the basis that the Court would not, in any event, have made a family provision order in favour of the Cross-Claimant Legislation Cited: Civil Procedure Act 2005 (NSW) Justice Legislation Amendment Act 2018 No 4 (NSW) Succession Act 2006 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Andre v Perpetual Trustees WA Ltd (as Executor of the Will of Barbara Helen Owen Stewart) [2009] WASCA 14 Bates v Messner (1967) 67 SR (NSW) 187 Butler v Morris; Butler (bht NSW Trustee & Guardian) v Morris [2012] NSWSC 748 Carey v Robson (No 2) [2009] NSWSC 1199 Chan v Chan [2016] NSWCA 222 Chu v Ngar [2015] NSWSC 1505 Cringle v Cringle [2018] NSWSC 1558 Forsyth v Sinclair (No 2) (2010) 28 VR 635; [2010] VSCA 195 Harkness v Harkness (No 2) [2012] NSWSC 35 Hills v Chalk [2009] 1 Qd R 409; [2008] QCA 159 Ilott v The Blue Cross [2017] 2 WLR 979; [2017] UKSC 17 Madden-Smith v Madden (Estate of the late Doris Linda Madden) [2012] NSWSC 146 Mavrideros v Mack (1998) 45 NSWLR 80; [1998] NSWCA 286 Moore v Randall [2012] NSWSC 184 Neale v Neale [2015] NSWCA 206 Penson v Titan National Pty Ltd (No 3) [2015] NSWCA 121 Re Salmon, Deceased [1981] Ch 167 Sgro v Thompson [2017] NSWCA 326 Stone v Stone [2016] NSWSC 605 Thomas v Pickering; Byrne v Pickering [2011] NSWSC 572 Underwood v Gaudron (2015) 324 ALR 641; [2015] NSWCA 269 Valbe v Irlicht [2001] VSC 53 Verzar v Verzar [2012] NSWSC 1380 Verzar v Verzar (2014) 12 ASTLR 523; [2014] NSWCA 45 Category: Principal judgment Parties: Shane Colin Wise (Plaintiff) Stephen Gregory Barry (Defendant) Representation: Counsel: Mr G Rich (Plaintiff) Mr D Flaherty (Defendant)