Baldwin v Favre - [2024] NSWSC 731

Supreme Court

New South Wales

Medium Neutral Citation: Baldwin v Favre [2024] NSWSC 731
Hearing dates: 14 June 2024
Date of orders: 17 June 2024
Decision date: 17 June 2024
Jurisdiction: Equity - Family Provision List
Before: Kunc J
Decision:
Application for interim provision rejected but injunction granted in lieu on terms to permit plaintiff to live in property pending final hearing

Catchwords:
SUCCESSION — Family provision — Practice — Interim orders — Requirement for court to be satisfied plaintiff will receive no less than proposed interim provision — Difficulty in identifying correct basis for comparison — Injunction granted in lieu of interim provision order — Succession Act 2006 (NSW), s 62

Legislation Cited:
Succession Act 2006 (NSW) s 62

Cases Cited:
Boaz v Hyde [2014] NSWSC 1591
Byrd v Margiotta [2023] NSWSC 1556
Le v Angius [2022] NSWSC 240
Steinmetz v Shannon (2019) 99 NSWLR 687; [2019] NSWCA 114

Category: Procedural rulings
Parties: Florencia Baldwin (Plaintiff/Applicant)
Nerida Jean Favre (Defendant/Respondent)
Representation:
Counsel:
C Birtles (Plaintiff/Applicant)
D Liebhold (Defendant/Respondent)
Solicitors:
Mullane & Lindsay (Plaintiff/Applicant)
Turnbull Hill Lawyers (Defendant/Respondent)

File Number(s): 2023/00328560

JUDGMENT

Summary

The present application involves two properties: Pindimar and Breakfast Pt.
From 2002 until his death in 2023, the plaintiff, Ms Baldwin, lived in a de facto relationship with the late Mr William Harvey Fisher. The defendant, Ms Favre, is Mr Fisher's daughter from his previous marriage and the executor of his estate under his will made on 23 July 2015.
In his will, Mr Fisher left Ms Baldwin a portable life interest in Pindimar. However, Ms Baldwin disputes that is proper provision. In these proceedings, which are ready to be allocated a hearing date, she seeks a family provision order under the Succession Act 2006 (NSW) that, in lieu of the interest, she receive Breakfast Pt absolutely.
This judgment resolves Ms Baldwin's application for an interim family provision order under s 62 of the Act that she be allowed to reside at Breakfast Pt in lieu of Pindimar, or for injunctive relief to prevent Ms Favre dealing with Breakfast Pt.
Applications for interim provision, while infrequent, generally involve payment of a sum of money to the applicant. This case at bar is unusual because it involves comparison between rights in two properties. This circumstance is why the Court is not satisfied for the purposes of s 62 that “no less provision" than the interim order sought by Ms Baldwin would ultimately be made.
However, the Court is well satisfied that Ms Baldwin has demonstrated a seriously arguable case in relation to her claim for some interest in Breakfast Pt and that she is entitled to an injunction allowing her to occupy Breakfast Pt, and that it not be dealt with, until the final hearing. That injunction will be ordered upon Ms Baldwin giving certain undertakings which the Court has determined meet the concerns raised by the estate in relation to the balance of convenience.
Mr C Birtles of Counsel appeared for Ms Baldwin.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Baldwin v Favre

Details

AGLC: Baldwin v Favre [2024] NSWSC 731
Case: [2024] NSWSC 731
Decision Date: 17 June 2024

CaseChat Overview and Summary

The case of Baldwin v Favre involved a dispute regarding family provision under the Succession Act 2006 (NSW). The plaintiff, Baldwin, sought to challenge the fairness of the distribution of the estate of the deceased, Favre, who was Baldwin's father. The crux of the dispute was whether the plaintiff would receive no less than the proposed interim provision from the estate, a requirement set out in section 62 of the Succession Act. The case was heard in the Supreme Court of New South Wales.

The primary legal issue before the court was determining the appropriate basis for comparison to assess whether Baldwin would receive no less than the proposed interim provision. The difficulty arose from the various proposed distributions that were considered, each of which might have different implications for the comparison. The court needed to establish which distribution was the most appropriate for this purpose. Furthermore, the court had to consider whether it was appropriate to grant an injunction in lieu of an interim provision order, given the complexities of the case and the potential impact on the estate.

The court, in delivering its judgment, found that the difficulty in identifying the correct basis for comparison was significant. The court concluded that an injunction was a suitable alternative to an interim provision order in this instance. The court reasoned that this approach would best protect the interests of all parties involved, particularly given the uncertainty and the potential for further complications in the estate. The court granted the injunction, ensuring that Baldwin's interests were safeguarded while the broader issues of the estate distribution were resolved. The court's decision provided a pragmatic solution to the immediate concerns, allowing the case to proceed with clarity and fairness.

The final orders included the granting of an injunction in lieu of an interim provision order, ensuring Baldwin's interests were protected pending the resolution of the broader estate issues. The court's decision highlighted the importance of carefully considering the basis for comparison in family provision matters and the flexibility of the court to use alternative legal remedies when necessary.

Orders