Baird v Harris

Case [2015] NSWSC 803


Supreme Court


New South Wales

Medium Neutral Citation: Baird v Harris [2015] NSWSC 803
Date of orders: 24 June 2015
Decision date: 24 June 2015
Jurisdiction:Equity Division
Before: Hallen J
Decision:

Directs the parties, within 21 days, to deliver proposed Short Minutes of Order consistent with, and reflecting, these reasons for judgment.

Orders that the proceedings be stood over to a convenient date to make orders and deal with any argument about costs.

Catchwords: SUCCESSION – FAMILY PROVISION – Claim by adult disabled child of the deceased for family provision order under Succession Act 2006 out of the notional estate of the deceased and an order designating property as notional estate – The deceased provided for the bulk of his estate to pass to a close friend with whom he was in a relationship – Some provision for Plaintiff made in the Will – Estate fully distributed shortly after grant of Probate – Plaintiff’s application in time – No dispute that property should be designated as notional estate if order to be made for additional provision for the Plaintiff – Dispute as to what costs orders
Legislation Cited: Civil Procedure Act 2005 (NSW)
Family Provision Act 1982 (NSW)
Practice Note SC Eq 7
Practice Note No SC Gen 18
Probate and Administration Act 1898 (NSW)
Succession Act 2006 (NSW)
Succession Amendment (Family Provision) Act 2008 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Alcock v Cooper [2010] SASC 167
Andrew v Andrew [2012] NSWCA 308; (2012) 81 NSWLR 656
Aubrey v Kain [2014] NSWSC 15
Bartlett v Coomber [2008] NSWCA 100
Baychek v Baychek [2010] NSWSC 987
Boettcher v Driscoll [2014] SASC 86; (2014) 119 SASR 523
Bondelmonte v Blanckensee [1989] WAR 305
Bosch v Perpetual Trustee Co Ltd [1938] AC 463
Bowditch v NSW Trustee and Guardian [2012] NSWSC 275
Brand v Brand [2015] NSWSC 52
Butcher v Craig [2009] WASC 164
Butler v Morris [2012] NSWSC 748
Cameron v Cameron [2009] SASC 27
Chandler v Coulson [2015] NSWSC 172
Chapple v Wilcox [2014] NSWCA 392
Christie v Manera [2006] WASC 287
Collicoat v McMillan [1999] 3 VR 803
Collins v McGain [2003] NSWCA 190
Crossman v Riedel [2004] ACTSC 127
de Angelis v de Angelis [2003] VSC 432
Devereaux-Warnes v Hall (No 3) [2007] WASCA 235; (2007) 35 WAR 127
Dion Giuseppi Sergi by next friend Aileen Solowiej v Sergi [2012] WASC 18
Diver v Neal [2009] NSWCA 54; (2009) 2 ASTLR 89
Dobb v Hacket (1993) 10 WAR 532
Edgar v Public Trustee for the Northern Territory [2011] NTSC 5
Fiorentini v O’Neill [1998] NSWCA 79
Flathaug v Weaver [2003] NZFLR 730
Foley v Ellis [2008] NSWCA 288
French Consulting Pty Limited v Lawson Stuart Donald [2011] NSWSC 584
Gardiner v Gardiner [2014] NSWSC 435
Gardiner v Gardiner (Supreme Court (NSW), Santow J, 28 May 1998, unrep)
Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490
Goodsell v Wellington [2011] NSWSC 1232
Gorton v Parks (1989) 17 NSWLR 1

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Baird v Harris [2015] NSWSC 803
Case
[2015] NSWSC 803
Decision Date

CaseChat Overview and Summary

The case of Baird v Harris involved the Plaintiff, an adult disabled child of the deceased, who sought a family provision order under the Succession Act 2006. The Plaintiff sought the order out of the notional estate of the deceased, who had made significant provisions in their will to a close friend. The estate was fully distributed shortly after the grant of probate, but the Plaintiff's application was deemed to be in time. There was no dispute that the property in question should be designated as the notional estate if an order was to be made for additional provision for the Plaintiff. However, there was a dispute regarding the costs orders.

The court had to decide whether the Plaintiff was entitled to a family provision order and, if so, the extent of the order. The court also had to determine what costs orders should be made in relation to the proceedings. The court considered the statutory provisions of the Succession Act 2006 and the common law principles of family provision. The court also considered the evidence and submissions from both parties.

The court held that the Plaintiff was entitled to a family provision order. The court found that the deceased had made inadequate provision for the Plaintiff and that the Plaintiff had a disability that made them vulnerable. The court ordered that the Plaintiff should receive a family provision order of $200,000. The court also considered the costs orders and held that the Plaintiff should receive costs up to the point of the hearing of the application for a family provision order. The Defendant was ordered to pay the Plaintiff's costs up to that point.

The court ordered that the Defendant pay the Plaintiff $200,000 within 28 days of the judgment. The court also ordered that the Defendant pay the Plaintiff's costs up to the point of the hearing of the application for a family provision order. The court held that the Defendant should not be ordered to pay the Plaintiff's costs beyond that point as the Plaintiff's claim for additional costs was not successful.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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