Baldwin v Favre (No 2)

[2025] NSWSC 540

Supreme Court

New South Wales

Medium Neutral Citation:

Baldwin v Favre (No 2) [2025] NSWSC 540

Hearing dates:

19 May 2025

Date of orders:

28 May 2025

Decision date:

28 May 2025

Jurisdiction:

Equity – Probate and Family Provision List – Family Provision

Before:

McHugh JA

Decision:

See [151]

Catchwords:

CIVIL PROCEDURE — application for leave to reopen case to adduce evidence and make submissions on the application of the Court’s reasoning to “new facts” — where application made after delivery of reasons but before final orders — whether evidence previously unavailable to applicant — whether explanation given for not raising issue earlier — whether reopening would cause prejudice to other party — where scope of reopening uncertain — where evidence would establish present capital value of asset — whether new evidence would change result — leave refused

SUCCESSION — family provision —Succession Act 2006 (NSW), s 66(2) — where absence of unanimous opposition to the making of adjustment — order made adjusting interests

Legislation Cited:

Civil Procedure Act 2005 (NSW), ss 16, 56, 58, 60, 61, 62, 98

Succession Act 2006 (NSW), ss, 59, 66

Uniform Civil Procedure Rules 2005 (NSW), rr 2.1, 29.6. 36.16

Cases Cited:

Akins v National Australia Bank (1994) 34 NSWLR 155

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27

Autodesk Inc v Dyason (No 2) [1993] HCA 6; (1993) 176 CLR 300

Baldwin v Favre [2025] NSWSC 345

Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1

EB v CT [2008] QSC 306

Majak v Rose (No 5) [2017] NSWCA 238

Rodny v Weisbord [2024] NSWCA 183

Smith v NSW Bar Association [1992] HCA 36; (1992) 176 CLR 256

University of Wollongong v Metwally [No 2] [1985] HCA 28; (1985) 59 ALJR 481

Category:

Consequential orders

Parties:

Florencia Baldwin (Plaintiff)
Nerida Jean Favre (Defendant)

Representation:

Counsel:
C Birtles (Plaintiff)
M Hall (Defendant)

Solicitors:
Mullane & Lindsay Solicitors (Plaintiff)
Turnbill Hill Lawyers (Defendant)

File Number(s):

2023/328560

Publication restriction:

Orders made with respect to certain evidence pursuant to s 7(b) of the Court Suppression and Non-Publication Orders Act 2010 (NSW), on the ground in s 8(1)(e).

JUDGMENT

1. This application for family provision was heard on 8, 9 and 10 October 2024. Before me are the defendant’s notice of motion seeking among other things to reopen the evidence; a question concerning orders pursuant to s 66(2) of the Succession Act2006 (NSW); a question of costs; and, if the defendant’s notice of motion is dismissed, final orders disposing of the summons.

2. On 10 April 2025 I published lengthy reasons (the Reasons) identifying the provision I had decided to order in favour of the plaintiff: “a portable life interest in [an apartment at] Breakfast Point, in substitution for the provision made with respect to the portable life interest in [a house and land at] Pindimar, but otherwise on the same terms”: Baldwin v Favre [2025] NSWSC 345 (‘J’) at [323].

3. However, I did not make final orders. I had identified in the Reasons a question whether an order should be made pursuant to s 66(2) of the Succession Act adjusting the residuary beneficiaries’ interests consequent upon the provision I had decided to order: at J[321]-[322]. The parties had also indicated that they wished to be heard as to costs. I directed the defendant to take steps for the purposes of permitting submissions on the s 66(2) issue if the residuary beneficiaries wished to make them; in the event that none of those persons so wished, I directed “the parties by 5pm on 29 April 2025 to bring in an agreed form of order (save as to costs) to give effect to the provision I have decided to make”; and I directed submissions as to costs also by 29 April 2025.

4. On 17 April 2025, the defendant sought an extension of the timetable which I granted. There was no suggestion at that time that the property at Pindimar (Pindimar) had been, or was about to be, sold or that the defendant intended to bring any other application.

5. Before turning to the notice of motion it is convenient to say something by way of background about the agreed value of Pindimar and about the relative strengths of the residuary beneficiaries’ claims upon the estate.

The agreed value of Pindimar

6. The deceased (who was the plaintiff’s de facto partner of a long relationship) had arranged for the plaintiff to receive a substantial superannuation benefit. The plaintiff made no complaint about the provision made for her as to income. However, as to a home, the provision that the deceased made for the plaintiff under his Will was a “portable” life estate in Pindimar. In this proceeding the plaintiff sought an absolute transfer of the apartment at Breakfast Point (Breakfast Point) in substitution for the life estate in Pindimar. The values of the two properties were unsurprisingly of significance in the proceeding.

7. Pindimar (which is on the NSW Central Coast) had, as I said at J[10], “an estimated value (which is agreed between the parties) of $1,550,000”. The parties proceeded on the footing that that was an agreed fact. So did I.

8. As to the apartment at Breakfast Point in Sydney, I said at J[10] that it had “an estimated value of between $1,785,000 and $1,825,000 (on the plaintiff’s case) or $1,900,000 (on the defendant’s case). For the purposes of resolving the issues in this case the parties have not asked me to decide between those figures and I have not found it necessary to do so”.

9. It followed that Breakfast Point was worth (at the high end of the range, using the defendant’s figure of $1,900,000) about $350,000 more than Pindimar.

10. The provision I decided to order was the substitution of a life estate in Breakfast Point for the one in Pindimar. The difference in value between the two properties would have a direct effect on the amount available to be distributed to the four residuary beneficiaries (the defendant executrix, her sister and brother, and their niece Madison) in the near term, upon sale of whichever of the two properties fell into the residue. It should be noted that that would also have been the effect of the provision the plaintiff primarily sought: an absolute transfer of Breakfast Point. The main difference between the provision the plaintiff sought and that which I decided to order was that upon the plaintiff’s death, the proceeds of sale of Breakfast Point (or whatever asset it had been turned into in accordance with the plaintiff’s directions under the testamentary trust) would be available to the four residuary beneficiaries.

11. The significance of the value of Pindimar was not only as a matter of relative worth (i.e., that it was less valuable than Breakfast Point). The absolute value of Pindimar was significant. For various reasons the plaintiff did not wish to live at Pindimar on the Central Coast, and instead wished to live in the apartment at Breakfast Point. The defendant’s answer to the plaintiff’s application for family provision included the propositions that the provision under the Will was adequate because the plaintiff could direct the defendant as trustee of her life interest under the testamentary trust to sell Pindimar, and that the proceeds would be sufficient to purchase for the plaintiff’s use a suitable apartment in a Sydney suburb in which she wished to live. The plaintiff was cross-examined on that basis, which treated the provision made for her as a capital fund of approximately $1.55 million.

12. At no point was it suggested by anyone that the value of Pindimar might be materially less than $1.55 million. As explained above, the defendant embraced the agreed value.

The strength of Madison’s claim on the estate

13. The Will provided for the four residuary beneficiaries to share equally in the residue of the estate which included, in addition to Breakfast Point, a substantial investment account. But the evidence disclosed a very substantial difference between the strength of the three siblings’ claims on the estate and the strength of Madison’s claim. The question whether it might be appropriate for the Court to make an order adjusting the residuary beneficiaries’ proportionate interests was a matter I took up with the parties in argument at the hearing, as discussed at J[239]-[240]. Neither party encouraged me to do so. I nevertheless made the directions referred to above.

14. That was because the difference between Madison’s position and that of the three siblings was significant in the reasoning which led to the provision I decided I should order. At the risk of gross oversimplification, the key point was that, having regard to all the relevant circumstances, including the size of the estate and the competing claims of the plaintiff and the four residuary beneficiaries upon it, I decided that provision should be made in favour of the plaintiff but that it should be in effect funded out of Madison’s share of the residue rather than out of the shares of the three siblings.

The notice of motion

15. On 6 May 2025, the defendant filed a notice of motion seeking the following order, together with a timetable:

“The Defendant be granted leave to adduce evidence and make written submissions on the application of the Court’s reasoning as contained within Baldwin v Favre [2025] NSWSC 345 (Reasons) J [312]-[318] to facts arising since delivery of the Reasons and why that application requires no order for provision to the Plaintiff to be made.”

16. Three things might be observed in the terms of the order sought.

17. First, the application was said to be based on “facts arising since delivery of the Reasons”. That requires that close attention be paid to the relevant “fact”.

18. Secondly, the express purpose of the application is to make submissions on the “application” of the reasoning published in the Reasons. That raises the question whether a losing party should be permitted to reopen the evidence where that may amount to giving the party a second opportunity to lead evidence or otherwise to re-fashion their case. As was said in University of Wollongong v Metwally [No 2] [1985] HCA 28; (1985) 59 ALJR 481 at 483:

“It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had and [sic] opportunity to do so.”

19. Thirdly, the object of the exercise was that “no order for provision to the Plaintiff … be made.” That raises a potential question about the utility of the application depending on the significance of the new “facts”.

20. The application was supported by an affidavit of Ms Ella Stratford, a solicitor employed by the firm acting for the defendant, deposing to an exchange of contracts for the sale of Pindimar on 17 April 2025 at a sale price of $1.2 million. This was put forward as the “evidence” of the “facts arising since delivery of the Reasons”. The defendant thus wishes not only to reopen but to depart from the agreed fact as to the value of Pindimar.

21. The affidavit also referred to the “current financial position of the Estate”. Although the defendant does not rely on this as an independent basis for reopening (i.e., a “fact[] arising since delivery of the reasons”), the defendant nevertheless submitted that it should be taken into account if there is a reopening. At [14], Ms Stratford deposes that from 12 April 2024 to 2 May 2025 the legal costs of the defendant inclusive of GST were $410,455.31. How that related to the figure of about $205,000 based on the solicitor’s estimates of outstanding costs given to the Court at the time of the hearing and referred to at J[12], which featured in the calculations in the Reasons, was not explained in the affidavit.

22. However, I was told from the Bar table that a sum of around $58,000 on account of paid legal fees, which had been referred to in the evidence at the hearing, was included in the $410,000 figure but not in the $205,000 estimate: Tcpt, 19 May 2025, 54.21. In order to determine the figure for actual costs incurred that corresponds to the costs that had been estimated at $205,000, it is necessary to deduct the $58,000 from the $410,000. That leaves a figure of approximately $352,000. That is some $147,000 more than the estimate of $205,000 given to the Court for the purposes of the hearing. There was no explanation why the estimate had been so badly wrong.

The applicable principles

23. Although I did not pronounce an order giving effect to the provision I had decided ought to be made in favour of the plaintiff when I delivered the Reasons on 10 April 2025, I certainly could have. My reasoning in support of that order on the evidence before the Court was complete; what is more, I published it. The order in favour of the plaintiff would have been made “having regard to the facts known to the Court at the time the order is made” within the meaning of s 59(2) of the Succession Act: that is, having regard to the evidence that was complete when judgment was reserved, and any findings made on that evidence: see Rodny v Weisbord [2024] NSWCA 183 at [63]-[65].

24. That being so, this is not a case where a party merely wishes to abandon an agreement as to a fact. Nor is it a case where a party merely wishes to reopen the evidence after judgment is reserved. To the contrary, the Reasons having been given, the defendant now wishes to adduce evidence for the express purpose of making “submissions on the application of the Court’s reasoning as contained within the [Reasons] … to facts arising since delivery of the Reasons.”

25. The notice of motion did not identify the power invoked. The defendant referred in submissions to Uniform Civil Procedure Rules 2005 (NSW) (UCPR) r 36.16(1), which provides: “The court may set aside or vary a judgment or order if notice of motion for the setting aside or variation is filed before entry of the judgment or order.” Since this is not an application for setting aside an order, that rule cannot directly apply (although see the discussion below as to the relevance of the applicable principles). Nevertheless, there is no doubt as to the existence of the power to permit a party to reopen, whether it be found in the general power to make directions for the speedy determination of the real issues between the parties to the proceedings, in s 61(1) of the Civil Procedure Act 2005 (NSW) (the Act); in the general power to give directions as to the conduct of any hearing, including directions as to the order in which evidence is to be given and addresses made, in s 62(1); in the general power to give such directions and make such orders for the conduct of any proceedings as appear convenient for the just, quick and cheap disposal of the proceedings, in UCPR r 2.1; in the power implicit in UCPR r 29.6(1) to give “any direction” with respect to the order of evidence and addresses; or, failing all the above, in the power in s 16(1) of the Act to give directions with respect to any aspect of practice or procedure for which rules of court or practice notes do not provide.

26. Whichever power is relied upon, it must be exercised consistently with the Act. In particular, the court must seek to give effect to the overriding purpose in s 56 of the Act when exercising the power: “to facilitate the just, quick and cheap resolution of the real issues in the proceedings.” An order permitting reopening is an order within the meaning of s 58(1) of the Act, and accordingly, in deciding whether to make such an order the court must seek to act in accordance with the dictates of justice, including having regard to the matters referred to in subs (2). The dictates of justice must be understood in light of the purposes and objectives stated in the Act, such that speed and efficiency in the sense of minimum delay and expense are essential to a just resolution of proceedings: cf. Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 at 213 [98] per Gummow, Hayne, Crennan, Kiefel and Bell JJ. It is notable in this regard that s 58(2)(b)(vi) refers to “the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction” (emphasis supplied). The practice and procedure of the court are to be implemented with the object of resolving the issues in such a way that the cost of the parties is proportionate to the subject matter: s 60.

27. A party may apply to reopen the evidence at various stages in the course of a proceeding: for example, (1) at the hearing, after closing the party’s own case and while in the case of another party; (2) after all parties have closed their cases, in the course of final submissions; (3) after judgment is reserved but before it is given; (4) after orders are pronounced but before they are entered; (5) after orders are entered. The stage of the proceedings is important; the further along the path a matter proceeds before the application is made, the more difficult it will most likely become. Many of the same considerations are discussed in the authorities regardless of the stage at which the question arises, although the weight to be given to a particular factor may vary depending on the stage. The parties referred to, among other cases, Smith v NSW Bar Association [1992] HCA 36; (1992) 176 CLR 256, Autodesk Inc v Dyason (No 2) [1993] HCA 6; (1993) 176 CLR 300, Majak v Rose (No 5) [2017] NSWCA 238; EB v CT [2008] QSC 306 at [4].

28. Among the matters identified in the cases as potentially relevant when considering the dictates of justice in a particular case are the public interest in the timely conclusion of litigation (and ultimately, once a decision has been made, the importance of the finality of litigation); whether the occasion for adducing the further evidence should have been foreseen; the probative force of the evidence and the significance of the issue to which it is relevant; whether the further evidence, if accepted, would probably affect the result of the case; whether reopening will occasion prejudice to the other party, particularly in light of forensic decisions taken; whether granting leave to reopen to lead particular evidence may have the practical effect of reopening the proceedings to a wider significant rehearing; the question whether the court has misapprehended the evidence or the law; whether the evidence was not called earlier because of a deliberate tactical decision; and any explanation offered by the applicant for not having called the evidence sooner.

29. In Majak, the NSW Court of Appeal stated the relevant principles in a case where judgment had been delivered and r 36.16 was relied on as follows at [12]-[19].

“[12] The rule is, like all rules made under the Uniform Civil Procedure Act 2005 (NSW), subject to the ‘overriding purpose’ of facilitating the ‘just, quick and cheap resolution of the real issues’ between the parties to litigation (s 56). It does not give a licence to disgruntled litigants to re-agitate, in the hope of obtaining a more favourable outcome, issues that have been determined against them. Nor does it make of a court some sort of magic pudding from which unsuccessful litigants may take slice after slice, ever hopeful that the next will be more palatable than the last. The rule has a serious, but limited, purpose which is to permit readily identifiable, readily rectifiable, inadvertent errors to be corrected without the complication and expense of an appeal (or, in the case of this Court, an application for special leave to the High Court). Abuse of the rule is detrimental to the administration of justice in unnecessarily and unfairly (to other litigants) taking up the time of the court. Nor does abuse of the rules facilitate the just, quick and cheap resolution of the issues between parties. On the contrary, unwarranted reliance on r 36.16 is oppressive to the successful party and a drain on the Court’s resources.

[13] It is well established that a court’s jurisdiction to set aside orders should be exercised sparingly and with caution, having due regard to the importance of the finality of litigation (see, for example, Wentworth v Woollahra Municipal Council (No 2) (1982) 149 CLR 672 at 684; [1982] HCA 41; State Rail Authority of NSW v Codelfa Construction Pty Ltd (1982) 150 CLR 29 at 38; [1982] HCA 51; Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 at 302; [1993] HCA 6; Rockcote Enterprises Pty Ltd v FS Architects Pty Ltd (No 2); Carelli v FS Architects Pty Ltd (No 2) [2008] NSWCA 205 at [9]).

In Autodesk v Dyason (No 2) at 302 Mason CJ said:

‘What must emerge, in order to enliven the exercise of the jurisdiction, is that the Court has apparently proceeded according to some misapprehension of the facts or the relevant law and that this misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing.’

Mason CJ was there particularly concerned with the potential for misuse of the jurisdiction. He said:

‘However, it must be emphasized that the jurisdiction is not to be exercised for the purpose of re-agitating arguments already considered by the Court; nor is it to be exercised simply because the party seeking a rehearing has failed to present the argument in all its aspects or as well as it might have been put. … The purpose of the jurisdiction is not to provide a backdoor method by which unsuccessful litigants can seek to re-argue their cases’ (at 303).

In the course of his reasons, Mason CJ cited the following passage from Wentworth v Woollahra Municipal Council at 684:

‘[T]he circumstances in which this Court will reopen a judgment which it has pronounced are extremely rare. The public interest in maintaining the finality of litigation necessarily means that the power to reopen to enable a rehearing must be exercised with great caution. Generally speaking, it will not be exercised unless the applicant can show that by accident without fault on his part he has not been heard.’ (italics added)

In Autodesk v Dyason (No 2) Mason CJ was concerned with the court’s inherent power to set aside or vary a judgment that had been pronounced, but not yet entered, and was in dissent as to the application of the principles. However, as will be seen below, his statement of the principles has been adopted and applied in relation to UCPR 36.16: see, for example: Rockcote Enterprises Pty Ltd v FS Architects Pty Ltd (No 2).

In considering an application pursuant to UCPR 36.16, this Court in Waterhouse v Independent Commission Against Corruption (No 2) [2015] NSWCA 362 at [17], after quoting the passage in the judgment of Mason CJ in Autodesk v Dyason (No 2) extracted at [14] above, said:

‘To that statement one may add two further notes of caution. First, there is a distinction to be drawn between the court acting upon a misapprehension as to the facts or the relevant law, on the one hand, and, on the other, the court reaching a conclusion which, in the view of the applicant for re-opening, involves a mistake. Secondly, there is a distinction to be drawn between the situation where the court misapprehends the facts, on the one hand, and, on the other, the situation where the court does not refer in its reasons to some matter which, in the belief of the person seeking re-opening, deserved express reference.’

The applicant bears the onus of showing that the jurisdiction ought to be exercised in her favour. That entails demonstrating some misapprehension on the part of the Court, and that that misapprehension is not attributable to her conduct of the proceedings.”

30. Where the application is made after delivery of reasons but before formal entry of judgment, “the appeal rules relating to fresh evidence may provide a useful guide as to the manner in which the discretion to re-open should be exercised”: Smith at 266 per Brennan, Dawson, Toohey and Gaudron JJ. These include whether the evidence was available before delivery of reasons, its credibility and probative value: see Akins v National Australia Bank (1994) 34 NSWLR 155 at 160 per Clarke JA (Sheller JA agreeing). And I understood the parties before me to proceed on the footing that where orders have been pronounced but a notice of motion has been filed pursuant to UCPR r 36.16(1) to set aside or vary the orders prior to entry (or within the 14 days provided by r 36.16(3A)), it is necessary to establish that the existing judgment or order is affected by some relevant irregularity or by a misapprehension of law or fact.

31. Notwithstanding that I did not make final orders, the defendant submitted that the approach I should take is that which applies where application is made pursuant to UCPR r 36.16(1). In those circumstances, and particularly given the importance of the finality of litigation, I consider it appropriate to determine this application having regard to substantially similar considerations, but bearing in mind that because no final order was made, the considerations that may arise out of any person’s acting in accordance with or on the faith of an order are not applicable.

32. Ultimately, as the defendant submitted, there was no dispute between the parties about the applicable principles or considerations. The real question was the weight to be given to the various factors in the circumstances of this case.

33. However, it might be noted that at several points the defendant’s submissions proceeded as though the only (or at least the central) consideration that could be dispositive against granting the application was the extent of any specific prejudice to the plaintiff. For example: “I keep coming back to the real question here, which is what is the prejudice to the plaintiff”: Tcpt, 19 May 2025, 16.7-8. That approach would lead to error.

34. The considerations which I have found to weigh most heavily in the balance on this application are as follows.

1. I am not satisfied for the purposes of this application that the evidence which the defendant wishes to adduce arises out of a change in circumstances (being the value of Pindimar), as the defendant primarily submits. That being so, I am not satisfied that evidence of the relevant “fact” (the value of Pindimar) was not available to the defendant in the relevant sense at the time of the hearing.

2. I do not consider the defendant to have given a sufficient explanation of the circumstances giving rise to the application.

3. Granting the application would occasion prejudice to the plaintiff in light of forensic choices that were made.

4. The difficulty in confining the scope of any reopening.

5. The evidence would establish the present capital value of one component of the assets of the estate at a time before the orders have been made.

6. It is far from clear that the evidence, if admitted, would change the provision that I had decided to order when I gave the Reasons.

35. To the extent the parties referred to other matters I will address them below.

The defendant has not shown that evidence of the value of Pindimar was not available, and has not given a sufficient explanation of the circumstances giving rise to the application

36. One matter of some significance in the present case, particularly given that it involves the departure from an agreed fact, is whether the defendant has proffered an explanation for not having raised the issue sooner. As Gummow, Hayne, Crennan, Kiefel and Bell JJ said in Aon Risk at [102]-[103], in the specific context of a plaintiff’s delay in seeking to amend to raise a substantial new claim:

“… Invariably the exercise of that discretion will require an explanation to be given where there is delay in applying for amendment.

… Generally speaking, where a discretion is sought to be exercised in favour of one party, and to the disadvantage of another, an explanation will be called for. … Not only will [the first party] need to show that their application is brought in good faith, but they will also need to bring the circumstances giving rise to the amendment to the court’s attention, so that they may be weighed against the effects of any delay and the objectives of the Rules. … “

37. See further at [106]-[109].

38. As the words, “Generally speaking,” indicate, those considerations are of general application where delay is relevant to the exercise of a discretion. Thus in Smith, Brennan, Dawson, Toohey and Gaudron JJ said at 266:

“If an application is made to re-open on the basis that new or additional evidence is available, it will be relevant, at that stage, to inquire why the evidence was not called at the hearing. If there was a deliberate decision not to call it, ordinarily that will tell decisively against the application.”

39. In this case, the defendant accepted that an explanation was necessary: Tcpt, 19 May 2025, 60.40-1. However, there was no direct evidence of an explanation from the solicitor, Ms Stratford, whose affidavit was read, and the defendant did not give evidence on the application, either directly or via the solicitor on information and belief.

40. Instead, counsel for the defendant asked the court to draw inferences in her client’s favour to the effect that “what has brought on this application, is the realisation that in crafting potential 66(2) adjustment orders, the practical effect of the delivered reasons could not be … achieved”: Tcpt, 19 May 2025, 10.45-8. I decline to draw that inference given the circumstances, including the alternative available inference, discussed below. I note that, in any event, the inference the defendant seeks would not explain why the evidence was not sought to be led sooner.

41. However, in order to understand the scope of the explanation called for, it is first necessary to say something about the way in which the defendant sought to characterise the proposed evidence, and the related question whether evidence of the issue was relevantly available to the defendant at the time of the hearing.

Was evidence of the “fact” relevantly unavailable to the defendant?

42. Although the sale did not occur until after the Reasons were delivered, the relevant “fact” is not the fact of a sale itself but rather the value of Pindimar. The agreed value of Pindimar at $1.55 million was relevant at the hearing to determining the total value of the assets of the estate and also the value of the provision made for the plaintiff under the Will. The evidence now sought to be adduced is to the effect that contracts for the sale of Pindimar for $1,200,000 were exchanged on 17 April 2025. The defendant wishes to rely on that as evidence of the market value as at 17 April 2025. That gives rise broadly to two possibilities as to how the defendant might characterise the proposed evidence, insofar as it would address the value of Pindimar.

1. There was a change in circumstances: the agreed fact had been correct at the time of the hearing in October 2024, but between October 2024 and 17 April 2025, the value of Pindimar declined by some 22.5%.

2. Alternatively, the agreed fact was simply wrong all along. As counsel for the defendant expressed this possibility, “the agreed fact was wrong and misapprehended what actually could be achieved, the actual value of the property”: Tcpt, 19 May 2025, 17.43-4.

43. Perhaps mindful of the terms of the notice of motion, which refers to “facts arising since delivery of the Reasons”, Counsel for the defendant identified the first possibility as the defendant’s “primary position”: Tcpt, 19 May 2025, 17.40). The second possibility was pressed as a fall-back. (A third logical possibility — that the agreed figure was wrong at the time and also declined — was not pursued.)

The defendant’s fall-back position

44. The defendant’s fall-back position, that the agreed value was wrong all along, may be addressed shortly.

1. Although there was no direct evidence to establish that the agreed value was wrong, in light of the affidavit of Mr John Rumble discussed below, which the defendant read, there is at least as much reason to doubt the correctness of the agreed figure as at October 2024 as there is to think the value of Pindimar declined.

2. Secondly, and crucially, if the agreed fact was wrong, any “misapprehension” was on the part of the parties, not the Court. It was not a misapprehension that the parties had agreed that the value of Pindimar was $1.55 million. Put another way, the defendant would not have shown that there was a “fact” arising since delivery of the Reasons, or that evidence of the “fact” was not relevantly available to her at the time of the hearing.

3. Thirdly, and relatedly, it is a basic aspect of the just, quick and cheap resolution of the real issues in proceedings that parties should generally be held to the way they choose to run their case. That means the case is to be decided by reference to findings made on the evidence the parties choose to lead and otherwise on the facts they choose to agree. Here, both parties, but in particular the defendant, took the forensic decision to agree that value at the hearing. That value was helpful to the defendant’s case as presented at the hearing. (Indeed, it would not have been improper for the defendant to agree the figure even if the defendant had considered at the time that it was excessive). The fact that the defendant no longer perceived that agreement to be helpful to her case in light of the Reasons (as explained below) is not a reason for permitting her to depart from the agreement or otherwise to reopen.

4. Those matters alone would make it extremely difficult to conclude that the dictates of justice required that the defendant be permitted to reopen after publication of the Reasons in order to correct the defendant’s error (assuming there was one) in agreeing the value of Pindimar for the purposes of the hearing. To the extent that the defendant’s application is based on this fall-back characterisation of the evidence, in the absence of any sufficiently strong countervailing factor or factors in favour of reopening, the application must fail.

5. There was a fourth problem arising out of these matters. If the agreed figure was wrong, it was necessary for the defendant’s explanation to address the following questions: when did the defendant realise that the agreed figure was wrong; when should the defendant have realised the agreed figure was wrong; and, more generally, why the error in the defendant’s understanding was not raised sooner. These matters were not explained. The evidence relating to the circumstances leading to the application is discussed in detail below in relation to the defendant’s primary position that there was a change in value.

The defendant’s primary position

45. As to the defendant’s primary case, that the new “fact[] arising since delivery of the Reasons” was that the property declined in value after the hearing, it could not be (and was not) suggested that the value declined by in excess of 20% in the seven days between the delivery of the Reasons and the exchange of contracts in April 2025. If it were the case that the decline in value occurred at some earlier time after the hearing, significant questions requiring explanation would be whether the defendant realised, or should have realised, that there had been a decline (which may have involved evidence of when the decline in fact occurred); if so, when; and, more generally, why the defendant did not raise the decline in value sooner.

46. There was no admissible evidence that there had been a decline in value. So far as matters requiring explanation are concerned, the affidavit of Mr Rumble on which the defendant relied raised as many questions (i.e. requiring explanation by the defendant) as it answered. I understood that Mr Rumble’s evidence was relied on both for the purposes of the application (i.e., as some evidence of the circumstances in which it arose) and also to constitute the evidence that would be led in the event that the application to reopen succeeded. Mr Rumble deposed to the following matters.

1. Mr Rumble is a Real Estate Agent at Hawks Nest. It was not suggested that he was a qualified valuer

2. On 22 January 2024, he provided the plaintiff with a market appraisal for Pindimar in the range $1,500,000-$1,600,000. (It might be noted that Mr Rumble did not give evidence justifying that appraisal or, for that matter, seeking to undermine it. The appraisal attached details of five properties said to represent “Comparable Sales”. The most recent of those sales was in April 2022, some 2½ years before the hearing, and the other four sales had been in 2021. Three of the four properties had sold for less than $1 million. One had sold for $3.2 million, but the land area was more than 16 times as large (1.41 ha versus 855 m²). Another had sold for $1.495 million, but again the land area was more than five times as large. Assuming the accuracy of that information, it would not permit the Court to draw any conclusion as to the value of Pindimar in the absence of expert evidence explaining it.)

3. On 12 September 2024, Mr Rumble emailed the solicitors for the defendant confirming that his appraisal remained the same. (It might be noted that Mr Rumble did not give evidence either justifying that confirmation or seeking to undermine it. His email of 12 September 2024 did not provide any further or updated information. It did not, for example, attach details of any further comparable sales.)

4. On 17 September 2024, the defendant engaged Mr Rumble to assist in the sale of Pindimar.

5. Mr Rumble put Pindimar on the market on 2 October 2024, with an auction scheduled for 23 November 2024. One interested party indicated that if the property did not sell at auction “he would consider making an offer of $1,400,000” depending on the sale of other property. That potential purchaser never made an offer. Pindimar “did not get much interest in the lead up to the auction, and there were no registered bidders.” In consultation with the defendant, Mr Rumble decided to cancel the auction the day before it was scheduled. (It might be noted that this was the opposite of what Mr Rumble had indicated in his email of 12 September 2024, namely, “I anticipate a lot of enquiry and strong competition”.)

6. The only actual offer made before April 2025 was on 17 January 2025, when a prospective purchaser made an offer at $1 million. The defendant rejected the offer and there was no further offer. (It might be noted that this offer was made almost 3 months before the Reasons were delivered.)

7. Other interested parties mentioned a price of $1 million, which information was provided to the defendant. None of those parties made an offer.

8. Around 7 April 2025, the defendant informed Mr Rumble that a woman had been at Pindimar on 5 or 6 April, and might be interested in making an offer. For reasons that remain obscure, the identity of the purchaser was not disclosed in the affidavit, although it was communicated to the plaintiff’s lawyers. The Court was informed without objection that the purchaser was a solicitor. On 14 April 2025, the purchaser offered $1,050,000. This was rejected, as was a further offer of $1,150,000. On 16 April 2025, the purchaser offered $1.2 million which the defendant accepted. Settlement was due to take place on or before 29 May 2025.

9. Mr Rumble stated: “I recommended [the defendant] accept the offer of $1,200,000, because the Pindimar property had been on the market so long, and interest had been lower than expected.” (It might be noted that Mr Rumble did not give evidence of the advice, if any, he had given to the defendant about the earlier communications from interested parties.)

47. In the result, the evidence offers little support for the correctness of Mr Rumble’s appraisal in the range $1.5-1.6 million, or, by extension, for the agreed value of $1.55 million upon which the parties chose to conduct the hearing. Nor does the evidence support the defendant’s primary position that there was a decline in value between October 2024 and April 2025. There had been negligible interest in Pindimar at the time of the hearing in October through to November 2024, and the auction was cancelled. In the whole period from the time of Mr Rumble’s engagement on 12 September 2024 until the end of March 2025, there was only one actual offer, which was for $1 million.

47. All that being so, I am not satisfied for the purposes of this application that the evidence which the defendant wishes to adduce if she obtains leave to reopen is evidence arising out of a change in circumstances (being the value of Pindimar), as the defendant primarily submits. I am not satisfied that evidence of that fact (the value of Pindimar) was not available to the defendant either at the time of the hearing, or at a time after the hearing but well before the Reasons were delivered. Certainly, if the “fact” is that the market value of Pindimar was $1.2 million, I’m not satisfied that that is a “fact[] arising since delivery of the Reasons” To the extent that the defendant’s application is based on her primary characterisation of the evidence, in the absence of any sufficiently strong countervailing factor or factors in favour of reopening, the application again must fail.

No sufficient explanation

49. But even if I am wrong about that, I do not consider the defendant to have provided a sufficient (and therefore a satisfactory) explanation of the circumstances leading to the application.

50. The information about the progress of the sales process described above, which at the least gave reason to doubt the correctness of the agreed figure for Pindimar, was conveyed to the defendant. The defendant took no step to reopen the evidence or depart from the agreed fact. That occurred in circumstances where in light of the case she made at trial it was in the defendant’s interest that the value of Pindimar be $1.55 million, rather than some lower figure. I then published my reasons. A week later, the defendant accepted an offer (which was far below the figure agreed at trial), which the defendant submitted crystallised the market value. At that point, and expressly because of the Reasons, the defendant undoubtedly perceived it to be in her interest to be permitted to reopen the evidence and depart from the agreed fact.

51. Those circumstances give rise to a real possibility that the defendant or her representatives made deliberate forensic choices, both before I published the Reasons and, possibly, afterwards. As to matters occurring before I published the Reasons, I accept the submission of counsel for the plaintiff that “[i]t is an available inference to draw that the defendant did not apply to reopen the case prior to delivery of judgment because it would not have assisted the case that she sought to make at trial”: Tcpt, 19 May 2025, 50.13-16. As to matters occurring after the Reasons, it is true that Mr Rumble deposes that he recommended that the defendant accept the offer of $1.2 million. But, on the defendant’s primary hypothesis (that the agreed figure of $1.55 million had been correct as at October 2024), given the large disparity in value, and the fact that it was the acceptance of the offer that gave rise to the application to reopen, the circumstances in which the defendant accepted the offer a week after the Reasons, including her decision-making processes, are matters of potential significance.

52. To say that an inference is available is not to say that it should be accepted. But in the language of Aon Risk, it was for the defendant “to bring the circumstances giving rise to the [application] to the court’s attention”. In the absence of a sufficient explanation of the circumstances, the Court is not in a position to make an informed decision. Put another way, the Court is not in a position to weigh the circumstances in the balance along with all the other relevant considerations such as the importance of the finality of litigation and the overriding purpose in s 56: cf. Aon Risk at [103].

53. A sufficient explanation would have needed to address the circumstances identified above, including the question of any forensic choices, and to do so by evidence. Depending on the explanation, doing so might also involve the defendant’s having to disclose any legal advice touching on these issues that had been given around the time that the offer was accepted, if there was any. The same would be true if there had been earlier advice on the question whether the defendant could or should seek to depart from the agreed fact. For example, in Aon Risk, Gummow, Hayne, Crennan, Kiefel and Bell JJ said of the solicitor’s affidavit at [107]: “[a]t no point did he suggest that this was the first time that ANU appreciated that it had a claim against Aon of the kind it sought to raise by amendment.”

54. When the question of legal advice was raised with counsel for the defendant in the course of argument, she referred to the evidence of Ms Stratford (who is an employed solicitor in the firm representing the defendant) that she had been on leave in the period 14 to 22 April 2025: Tcpt, 19 May 2025, 14.36-42. That evidence does not go far. It does not address the possibility that the solicitor might have given advice before or after that period; nor the possibility that someone else might have given advice in that period. There was no submission made to the effect that no advice was ever given on these issues. The solicitor Ms Stratford’s affidavit read on the application did not address the issues discussed above. The defendant herself did not give evidence, even via the solicitor on information and belief.

55. I consider the failure to give a sufficient explanation a powerful factor tending against granting the application to reopen.

Prejudice to the plaintiff

56. It was submitted on behalf of the plaintiff that granting the application would occasion prejudice to her in light of forensic choices that she made. Counsel submitted that she conducted her case on the basis of the agreed fact. It was submitted that if the defendant had led evidence of a lower figure for the value of Pindimar, the cross-examination of the defendant’s witnesses, and the submissions as to the financial needs of each of the individual beneficiaries, would have been more extensive. It was also submitted that additional steps may have to be taken to seek leave to lead valuation evidence of Breakfast Point (as opposed to a mere estimate).

57. The defendant at first submitted that what was necessary was “actual concrete substantiated prejudice that’s evidenced”: Tcpt, 19 May 2025, 27.19-20. However, I asked counsel for the defendant why I should not take an approach similar to that taken where a point is sought to be raised for the first time on appeal, namely, that if the point could or might have been dealt with differently below, that is a reason for not allowing it to be heard on appeal. It was submitted for the defendant that that was the relevant approach: Tcpt, 19 May 2025, 27.30. Notwithstanding that submission, the defendant later reverted to the language of “real actual prejudice”: Tcpt, 19 May 2025, 29.5.

58. I had referred in argument to Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1. The test of prejudice in that case was stringent: whether “evidence could have been given which by any possibility could have prevented the point from succeeding”: at 7 per Gibbs CJ, Wilson, Brennan and Dawson JJ (emphasis added). Although that formulation is directed to whether the particular point taken for the first time on appeal might have been defeated at first instance, it is a manifestation of a broader approach to the situation where one party will (or may) suffer prejudice if the other party is permitted to depart from the way it conducted its case: see the reference to Metwally above. The point is that in such situations, it is enough if the first party can identify a real risk of prejudice arising out of the departure. It is not necessary to establish “actual concrete substantiated prejudice”, still less “that’s evidenced”.

59. As to cross-examination, the defendant submitted that there had been “no articulation of the topics on which this more extensive cross-examination would go, the material that would have been deployed with respect to it, no explanation of why or how it would have made any difference”: Tcpt, 19 May 2025, 28.49-29.2. Counsel for the plaintiff answered that if the pool of resources available for division between the plaintiff and the residuary beneficiaries was smaller, he would have pursued, in particular, two topics at greater length: the beneficiaries’ claimed need for superannuation and their claimed needs to fund a psychologist, which was described as being to some extent speculative: Tcpt, 19 May 2025, 50.24-51.1. I accept that submission.

60. It is consistent with the way in which I had understood the purpose of the cross-examination conducted at the hearing. That is, to demonstrate that the estate would have sufficient resources to fund the residuary beneficiaries’ legitimate claims even after the provision the plaintiff sought with respect to Breakfast Point (an absolute devise; the point is a fortiori if the provision is a life estate). That being so, although the plaintiff cross-examined the beneficiaries as to their particular circumstances, it was not the focus of the plaintiff’s cross-examination to emphasise the differences. That is consistent with the plaintiff’s submission which I recorded at [239] of the Reasons, that it would not be necessary to adjust the residuary beneficiaries’ interests under s 66 because there would still be sufficient assets in the estate to meet the claims and needs of those beneficiaries in full. That being so, I consider that if leave to reopen were granted to the defendant, that would occasion prejudice to the plaintiff. I would reach the same conclusion even if (contrary to the view I’ve formed above) the defendant’s language of “real actual prejudice” represented the applicable standard.

61. As to the plaintiff’s submission that she might have wished to lead specific valuation evidence about Breakfast Point, the defendant’s submission disputes the prejudice but, more significantly, argues that in any event any prejudice could be alleviated by permitting further evidence now. But that is precisely the problem with permitting reopening on account of a particular issue; it is difficult to put the genie back in the bottle. That is particularly so here, since the issue on which the reopening is sought (the value of Pindimar) went to the overall size of the estate and the provision made under the Will for the plaintiff, which were considerations relevant to many dimensions of the claim.

62. There is a more general point about prejudice that follows from that. Where a case is conducted on the basis of an agreed position as to an important fact, it will inform forensic choices across the board. That being so it can be difficult not only to unscramble the egg, but even to identify, after the event, the different ways in which the eggs might have been scrambled. As counsel for the plaintiff submitted: “there’s a lot of moving parts and … the value of the Pindimar property was one integer in the whole range of considerations that your Honour was required to consider”: Tcpt, 19 May 2025, 51.1. The same might be said of the matters both counsel were required to consider at the hearing.

63. I specifically raised with counsel for the plaintiff whether the difference between capital funds of $1.2 million and $1.55 million, and the corresponding difference in the apartment that the plaintiff would be able to buy with each capital fund, would have had a practical consequence at the hearing, in terms of cross-examination or evidence that might have been led of the availability of alternative apartments for the plaintiff to buy. Counsel very fairly answered, “I don’t think it would make a difference to the cross examination. I don’t know whether it would have made a difference to the way in which the case was put”: Tcpt, 19 May 2025, 52.20-3. Counsel did not submit that his uncertainty on that score was itself prejudice. But counsel’s difficulty in giving an affirmative answer one way or the other to a counterfactual question about a particular topic asked long after the hearing demonstrates the need for caution where a party seeks to depart from the agreed position after the case has been run.

64. In the result, I consider that if leave to reopen were granted to the defendant, that would occasion prejudice to the plaintiff. That is a very material matter when considering the dictates of justice in this case.

The difficulty in constraining the reopening

65. A related subject, touched on above, is the difficulty in limiting the reopening to the new “fact” about the value of Pindimar. The principles as to the extent of the “review” which follows from a reopening were described in Smith at 265-266 per Brennan, Dawson, Toohey and Gaudron JJ:

“… once a matter has been re-opened, the nature and extent of the review must depend on the error or omission which has led to that step being taken. … [I]n the case of a factual error, the extent of the review will vary depending on whether the error goes to the heart of the matter or whether its significance is confined to some discrete subsidiary issue.

… What must be considered is the question to which the error was relevant and the significance of that question to the decision reached.”

66. In this case the reopening is sought to permit the defendant to argue that if the provision I decided to order in the Reasons is made, then, because of the supposed change in the value of Pindimar, the resources of the estate will be insufficient to meet the various legitimate claims of the residuary beneficiaries. The defendant argues that permitting reopening would change the outcome of the case (a subject to which I return below). It is difficult to resist the proposition that, at least on the defendant’s case, the evidence sought to be led “goes to the heart of the matter”. That tends to indicate that the scope of the “review” may not readily be limited to the evidence the defendant wishes to adduce

67. In this regard, the defendant submits that if the reopening is granted, I should also take into account what is now known about the remaining resources of the estate in light of the evidence as to legal costs. As I noted above, there is no explanation of how it is that the estimate of $205,000 given at the hearing blew out by almost $150,000. Before I took the evidence of the actual costs incurred into account in a way that was adverse to the plaintiff, I would require some explanation of the circumstances. Depending on the explanation, it might, in turn, mean that the plaintiff should have an opportunity at least to explore the issue. The defendant adopted a full-back position in argument before me that it would not be necessary for me to take into account the effect of those costs on the resources of the estate if leave to reopen were granted. But if leave to reopen were granted, it is not clear to me what the principled basis would be for disregarding the evidence of those costs while taking into account the evidence about the value of Pindimar.

68. In light of the conclusion that I reached above about prejudice to the plaintiff, if I were to grant the application to reopen, I would also give the plaintiff the opportunity (which I should in fairness point out she has not yet raised) to consider whether she wished further to cross-examine the residuary beneficiaries. It is submitted for the defendant herself that one way to cure any prejudice in relation to the value of Breakfast Point would be to allow further evidence.

69. Given that the touchstone is the dictates of justice, and that each new question would have to be determined on its own merits, it is not easy to say where this process would ultimately end. Once permitted, the reopening risks becoming a loose thread that unravels the fabric of the three-day hearing that led to the Reasons.

70. That is a further reason for refusing the application.

The evidence would establish the present capital value of one component of the estate

71. The principal reason in favour of granting the application is one which counsel for the defendant described as follows: “there are public policy considerations of ensuring disputes are determined based on reality and not what turns out to be perhaps a fictional view as to what the value of this property was”: Tcpt 19 May 2025, 21.23-6.

72. In other words, the submission is that, at a time before final orders have been made, the evidence the defendant wishes to adduce would establish, with certainty, the present capital value of one component of the assets of the estate (i.e., that the proceeds of the sale of Pindimar will be $1.2 million less transaction costs).

73. I note that that is not necessarily the same as establishing that the market value of Pindimar at the time of the exchange of contracts was $1.2 million, but that issue may be put to one side for present purposes.

74. That submission was put at the level of public policy. It invites answers at the same level. There are countervailing considerations of policy, including that parties should be held to the way in which they conduct their case, the importance of the finality of litigation, the overriding purpose in s 56, and so on.

75. One more specific answer is that, as the plaintiff points out, the Court of Appeal has recently emphatically rejected the proposition that there should be updating affidavits until the moment judgment is given: see Rodny at [66]. The reasons for resisting any such practice are even stronger in respect of updating affidavits after reasons are given.

76. Nevertheless, in determining the dictates of justice in this case, it has weighed heavily in the balance (a) that the purpose of the reopening would be to adduce evidence suggesting that the capital value of one of the important assets of the estate is substantially different from the agreed fact and (b) that the specific reasoning leading to the provision which I decided to order relied on the agreed fact.

77. Despite the considerable weight I give to those matters, I consider them to be outweighed by the other considerations to which I have referred above. I reach that conclusion even assuming, in the defendant’s favour, that if the reopening were permitted, that would probably change the outcome such that the plaintiff’s claim would be dismissed.

78. However, there is an additional and independent reason which significantly reduces the weight to be given to the consideration that the evidence would establish the present capital value of one component of the assets of the estate. That is, that I reject the assumption referred to in the preceding paragraph. To the contrary, the defendant’s submissions misapprehend the reasoning in the Reasons. If the reopening were permitted, I consider it far from clear that it would result in a different outcome.

I consider it far from clear that the evidence, if admitted, would change the provision that I had decided to order when I gave the Reasons

79. In addition to written submissions on the application to reopen which were dated 6 May 2025, the defendant filed written submissions on 13 May 2025 as to the orders that should be made if leave to reopen were granted. Although, as I said at the hearing of the notice of motion, at this stage I was dealing only with the application for leave to reopen, I would treat the 13 May submissions as being before the Court to show the argument that the defendant wished to run.

The defendant’s submissions about the Reasons

80. Those submissions addressed, over three pages, the way in which the defendant read the Reasons, in summary as follows.

1. If no provision were ordered in favour of the plaintiff, each of the residuary beneficiaries including Madison would receive a distribution in the near future in the range of $475,000-$525,000.

2. Madison’s claim on the estate, though weaker than those of the three sibling beneficiaries, should not be set at nothing.

3. The difference in value between Pindimar and Breakfast Point was $350,000. The plaintiff had a stronger claim than Madison had on part of Madison’s share of the residue, which was equal in value to $350,000. Accordingly, that part of Madison’s share of the residue should fund the provision in favour of the plaintiff.

1. The plaintiff’s claim was not strong enough to have the practical effect of justifying reducing the provision currently made for any of the three siblings. It was only because of the view I had taken of the provision made by the Will in favour of Madison that I was satisfied that the provision made for the plaintiff was not adequate.

81. The defendant’s submissions emphasised the word “only” in J[318]. Paragraph 16 of the 13 May 2025 submissions was as follows:

“Considered holistically, the reasoning at J[306]-[318] makes it clear that his Honour only reached the relevant satisfaction under s 59(1)(c) of the Succession Act because of his understanding that factually:

a.   Madison’s provision could bear the burden of granting provision to the Plaintiff (in the form of substituting the Pindimar property for the Breakfast Point property);

b.   whilst not resulting in Madison receiving nothing in the near future; and

c.   whilst simultaneously not impacting at all on the claims of the remaining three residuary beneficiaries and the amount they would receive in the near future.”

82. The defendant thus read the Reasons as though they contained a finding that there was no circumstance in which provision should be made in favour of the plaintiff if it would result in the three siblings’ receiving less than the amount they would otherwise receive, or in Madison’s receiving nothing. The defendant then argued that that outcome was no longer possible in view of the fact that (assuming leave to reopen was granted) the difference in value between Pindimar and Breakfast Point was not $350,000 but instead $700,000.

83. One somewhat bizarre artefact of the defendant’s argument is that it involves the proposition that the effect of the process of reasoning set out in the Reasons (which concluded that provision should be made in favour of the plaintiff) is to require that, because the value of the provision in fact made for the plaintiff under the Will is $350,000 less than the figure that was the basis upon which the Reasons proceeded, the plaintiff should have no provision at all.

84. The argument proceeds from a significant misreading of the Reasons. I will not set out the whole of the dispositive section of the Reasons, which begins at J[283] and runs through to [325]. What follows assumes familiarity with those paragraphs.

The correct reading of the Reasons

85. At its heart, the misreading involves the proposition that the Court should change the value of Pindimar for the purposes of calculating the effect the substitution of Breakfast Point will have on the residuary beneficiaries, but not otherwise.

86. A basic problem with the defendant’s approach is that it fails to recognise that the state of satisfaction to which s 59 of the Succession Act refers is reached holistically, having regard to all the relevant circumstances at the same time.

87. The defendant particularly relies on excerpts from J[315], [317] and [318], but the submissions ignore their context. The words “practical effect” in J[315] and [317] were important. They were directed to the result of the holistic process that led to the state of satisfaction. The word “only” in J[318] was also directed to that result. To summarise, the reason why the result was emphasised at J[315]-[318] is as follows.

1. There were at least three sets of competing claims on the estate: the plaintiff’s, Madison’s, and the three siblings’. (It had not become necessary to distinguish among the siblings, for the reason stated in the next subparagraph.) In particular, I expressly stated at J[307] that I had found it necessary to distinguish between Madison on the one hand and the siblings on the other. The purpose of J[307] was to introduce the reasoning that runs from J[308]-[318], which is the passage at issue.

2. As between Madison and the others, I had already formed the view that Madison’s claims on the estate were considerably weaker than those of both the plaintiff (e.g., J[235], [308], [310]) and each of the three siblings (e.g., J[236], [240], [307]).

3. I had already decided that as between the plaintiff and Madison, the plaintiff’s claim on Madison’s share was stronger than Madison’s, at least to the extent of the $350,000 difference between Breakfast Point and Pindimar (e.g., J[310]). And I had already referred to the possibility of a s 66(2) order at J[312].

4. A principal matter to which J[315]-[318] were then directed was the question whether the provision to be made in favour of the plaintiff should be funded only by Madison, or by the three siblings as well. The conclusion was the former, having regard to all the circumstances, including the relative strengths of the competing claims on the estate as between Madison on the one hand and the three siblings on the other.

88. All the conclusions stated in the Reasons, and in particular at J[308]-[318], were on the footing that Pindimar was worth $1.55 million as agreed. That was relevant in two important ways.

89. First, and most significantly for present purposes, the value of Pindimar went to the nature and extent of the estate (s 60(2)(c), discussed at J[244]-[245]), which was central to consideration of the competing claims on the estate and how (and to what extent) they should be satisfied (e.g. at J[316]).

90. Secondly, the value of Pindimar was material to consideration of the adequacy of the “provision made by the Will … for … the plaintiff”, which was effectively a capital fund of $1.55 million, now said to be $1.2 million. I considered that provision inadequate in all the circumstances. However, if the capital fund was in fact only $1.2 million, that would suggest that the provision made for the plaintiff in the Will was still more inadequate. That would also require reconsideration of aspects of the Reasons specific to the provision made for the plaintiff. For example, the statement at J[291]: “I did not understand the plaintiff to dispute that the proceeds of sale of Pindimar would be sufficient to purchase an apartment of some kind in one of those suburbs” was based on the agreed figure of $1.55 million. As counsel for the plaintiff said in argument on the notice of motion, he did not know whether the reduction in the figure would have made a difference to the way in which the case was put on this topic.

91. If the agreed value for Pindimar were abandoned, such that the extent of the estate was smaller, and the provision made in the Will for the plaintiff were also smaller, the conclusions reached at J[308]-[318] would all have to be reconsidered.

92. Although the defendant’s submissions referred to considering the reasoning “holistically”, the defendant focused on the conclusions which favoured her while ignoring the context of the process of reasoning that led to them. Paragraphs J[309] and [314] (which follow a similar scheme), and J[318] and [319] (which both refer to the “basis” on which I had concluded that the s 59 power was engaged), are to be read together. The reasoning in those paragraphs, which drew on the much more extensive analysis elsewhere in the Reasons, included the following matters.

1. It was based on “the view I have taken of the provision made by the Will in favour of Madison”, including the relative strength of her “claim[] upon the estate”. I began with Madison because, as noted above, I considered her claim upon the estate to be clearly weaker than both the plaintiff’s claim and the three siblings’ claims.

2. It was based on “considering the provision made under the Will for the plaintiff”, i.e. including that the agreed value of Pindimar was $1.55 million, and the strength of the plaintiff’s “claim[] upon the estate”.

3. It was based on “considering the provision made under the Will … for the residuary beneficiaries”, that is, all of them including the siblings (to which provision I had referred at J[317]), and the strength of “their claims upon the estate”.

4. It was based on the nature and extent of the estate (one of “the matters in s 60(2)”).

93. In light of those matters, I considered that “the provision made by the Will is not adequate” for the plaintiff, because I considered:

1. that “adequate provision would be a portable life interest in Breakfast Point”; and

2. that the difference in value between a life estate in Breakfast Point and one in Pindimar should be funded out of the provision made under the Will for Madison, where the plaintiff’s claim on the estate was to that extent stronger than Madison’s claim, and where the other residuary beneficiaries’ claims on the estate were also to that extent stronger than Madison’s claim.

94. In light of those conclusions, including that a life estate in Breakfast Point would be adequate provision, it was not necessary to determine how the competing claims of the plaintiff and the beneficiaries might be resolved if Madison’s share of the estate under the Will had been insufficient to fund the provision of a life estate in Breakfast Point in favour of the plaintiff.

95. The point of the words “only because” in J[318] was thus a simple one; it was tied to what followed immediately after at J[319] about the need to consider a s 66 adjustment. My state of satisfaction “that the provision made by the Will is not adequate”, and my corresponding decision to order provision in favour of the plaintiff, had to come at someone’s expense under the Will. The immediate question was whether it should be at the expense of all the residuary beneficiaries, or only of Madison.

96. As explained above, “after considering the provision made under the Will for the plaintiff and for the residuary beneficiaries and the matters in s 60(2)”, and the competing strength of their claims upon the estate, I considered the claims of both the plaintiff and the three siblings to be much stronger than Madison’s claim. That being so, “the view I [took] of the provision made by the Will in favour of Madison” was that her share should fund the provision to be ordered in favour of the plaintiff, i.e., the difference in value between a life estate in Pindimar and one in Breakfast Point. In that sense, it was “only because” of the view I had taken of the provision made by the Will in favour of Madison that I reached the state of satisfaction that the provision made for the plaintiff was inadequate.

97. As noted above, the reason for that point of emphasis was that this aspect of my reasoning went directly to the need to consider a s 66(2) adjustment, to which the Reasons then immediately turned: at J[319]ff.

98. The conclusion at J[315]-[318] was not that the plaintiff’s claim on the estate could never have defeated the provision made under the Will for the siblings. Whether that was so would depend on the nature and extent of the provision made for the plaintiff, including its value, and the size of the estate. To take a simple illustration, if the value of Pindimar had been agreed at $500,000 rather than $1.55 million, the reasoning in the dispositive section of the Reasons would have been very different, and it would not have turned only on my view of the provision made by the Will in favour of Madison.

99. The process of reasoning referred to above was also the context in which I said at J[317], “I do not consider the plaintiff’s claim sufficiently strong to have the practical effect of displacing the provision made for any of the siblings” (emphasis added; see the similar language at J[315], which referred to “reasons explained below”). That statement was a reference to the fact that the plaintiff’s claim was only strong enough to justify the life estate in Breakfast Point (which was “the provision for the plaintiff that I propose[d] to order”: at J[319]). That provision was to be funded out of Madison’s share: I “put[] the provision made for Madison to one side” (at J[317]) because I had already dealt with her share by applying part of it to fund the additional provision for the plaintiff. It followed that, in light of “the strength of the siblings’ claims upon the estate”, the plaintiff’s claim did not “have the practical effect of displacing the provision made for any of the siblings”. That was important because it then gave rise to the s 66(2) issue.

100. It follows that the defendant has misunderstood the dispositive reasoning, in particular in the passages which she emphasises at J[315], [317] and [318].

If leave to reopen were granted

101. If leave to reopen were granted, part of the basis on which I reasoned about the competing claims (the agreed value of Pindimar) would likely be disturbed. But it does not follow, as the defendant would have it, that the parts of the conclusions about the competing claims which favoured the defendant would survive but those which favoured the plaintiff would not.

102. The effect of the defendant’s submissions filed on 13 May is that in the “circumstances the only course is for there to be no order for the Plaintiff’s provision”: at [18]. That is, that the reopening would automatically result in complete victory for the defendant. That would not be the effect of reopening. The effect would be to require the holistic process of considering all relevant matters at the same time to be conducted again in light of the changed information.

103. It is neither appropriate nor possible to say with certainty what the outcome would be. That is so at least because the scope of the reopening is not entirely predictable, I have not had submissions from the plaintiff on the assumption that reopening was ordered, and neither party has addressed me on the competing claims among the three siblings. But I have had the benefit of the defendant’s written submissions on that assumption.

104. Putting to one side the question of s 66(2) adjustments, it seems to me far from clear that if leave to reopen were granted, it would result in anything other than the same provision for the plaintiff as I decided to make in the Reasons.

105. The reasons why I considered at [283]ff that Pindimar was not a suitable home for the plaintiff, but that Breakfast Point was, would not be in any way diminished if the value of Pindimar was less than had been agreed at the hearing. And, to the extent that (contrary to my view) the question of the adequacy of the provision made for the plaintiff’s home is to be viewed solely in terms of a capital fund, a substantial diminution in the size of that fund can hardly enhance its adequacy, all else remaining equal.

106. As to the competing claims of the plaintiff, the three siblings and Madison, for present purposes I will assume — which I understand was ultimately the assumption the defendant asked me to make — that if leave to reopen were granted, the only difference would be as to the value of Pindimar. On that assumption, ordering the substitution of Breakfast Point for Pindimar would reduce the amount available to be distributed to the residuary beneficiaries by a further $350,000.

107. I consider it far from clear that, viewing the matter holistically so as to take into account all relevant factors, including the size of the estate, the fact that it includes Breakfast Point, and the competing claims on it, I would consider the provision of a capital fund of $1.2 million for the plaintiff’s home adequate. I consider it far from clear that I would decline to order provision by way of the substitution of a life estate in Breakfast Point for the one in Pindimar. That is because I consider it at least fairly arguable that, taking all of those matters into account, if the provision under the Will in respect of the plaintiff’s home was no more than a capital fund of $1.2 million, in the competition for the residue between the plaintiff on the one hand, and the four residuary beneficiaries on the other, the plaintiff’s claim is stronger than the claims of the four residuary beneficiaries taken together, by at least the relevant figure of $700,000. (It is to be remembered that if no provision is ordered in favour of the plaintiff, the lion’s share of the “residue” available for distribution will be the proceeds of sale of Breakfast Point itself.)

108. To be clear, I think it at least fairly arguable that in the competition between the plaintiff and each of the residuary beneficiaries with respect to their equal individual shares in the residue under the Will as it stands, the plaintiff has a stronger claim:

1. to at least $100,000 of Nerida’s share under the Will than Nerida has;

2. to at least $100,000 of Louise’s share under the Will than Louise has;

3. to at least $100,000 of Billy’s share under the Will than Billy has; and

4. to at least a further $50,000 of Madison’s share under the Will than Madison has.

109. However, there might be many different ways of viewing the relative strengths of the four residuary beneficiaries’ claims on the estate. It is at least fairly arguable that the strength of the three siblings’ claims on their father’s estate is not uniform. It might accordingly be appropriate to adjust the interests of the residuary beneficiaries pursuant to s 66(2) to give effect to any differences.

110. In the result, the defendant’s submission that re-opening would automatically lead to dismissal of the summons should not be accepted. That consideration significantly reduces the weight to be given to the consideration that the present capital value of one component of the assets of the estate is less than had been agreed.

The discretionary factors the defendant relied on

111. The defendant advanced “four reasons” in her written submissions dated 6 May 2025 at [14]-[18] why leave to reopen should be granted.

1. “[T]he sole stated basis on which the Court proposes to make orders in favour of the Plaintiff fundamentally depends on factual matters which have materially changed since trial.”

2. “[T]he change has occurred after the Reasons (but before orders). It is therefore due to no fault or neglect [of] the Defendant that the matter has not been raised prior to delivery of the Reasons or at any other earlier stage.”

3. “[T]he nature of the re-opening is confined in its nature to the application of the Court’s reasoning in light of the updated fact of sale. A general re-opening is not sought”.

4. “[T]he prejudice to the Plaintiff in allowing leave is difficult to imagine.”

112. The substance of those matters has been addressed above.

113. At [19] the defendant made a fifth submission as follows:

“As a matter of procedural fairness, the Defendant should be allowed to make submissions on how the very particular way the Court has reasoned is applied to the fact[s] as they are now known. No opportunity has existed before this moment both because the sale had not occurred and because the particular way the Court had reasoned was not known.”

114. That submission should be rejected. To the extent that it turns on “facts” that were not previously known, it has been addressed above. To the extent that the submission is separated from that consideration, it cannot be sustained. In the absence of some misapprehension of the kind described in the authorities as to the law, the evidence or on an agreed fact, procedural fairness does not require that a disappointed party be given the opportunity to lead further evidence in order to make submissions about the application to that evidence of considered reasons delivered, after a full hearing, for the purpose of having the parties bring in an agreed form of order to give effect to the substantive conclusions reached. To do so would be to treat the hearing in October as a dress rehearsal, and to treat the Reasons as a director’s note to the cast.

115. As to the “very particular way the Court has reasoned”, at the hearing in October I attempted to engage the parties on the issue that, although the residue was to be divided equally under the Will, Madison was, as the defendant’s counsel acknowledged, “in a different category for various reasons”: J[240]. In particular, I raised the question whether there should be a s 66(2) adjustment. Neither party made any submission that engaged with the underlying issue of the disparity in the relative strengths of the claims on the estate of Madison and the three siblings: J[239]-[241]. Notwithstanding that, I have given the parties an opportunity to be heard on the s 66(2) issue, which has resulted in the orders I propose to make. I do not accept that there has been any denial of procedural fairness, or that there will be a denial of procedural fairness if I refuse the application for leave to reopen.

Conclusion on application to reopen

116. Considering all the matters referred to above, I have concluded that it is not in the interests of justice to grant leave to the defendant to reopen. The notice of motion filed on 6 May 2025 should be dismissed with costs.

117. A further consequence is that the remaining issues with respect to s 66(2) and costs are to be determined consistently with the Reasons.

Section 66(2)

118. Section 66 of the Succession Act provides as follows.

66 Consequential and ancillary orders

(1) The Court may, in addition to, or as part of, a family provision order, make orders for or with respect to all or any of the following matters for the purpose of giving effect to the family provision order—

(a)    the transfer of property of the estate directly to the eligible person in whose favour the order is made, or to any other person as trustee for that person,

(b)    where property is to be held on trust, the purpose of the trust and the way in which it is to be constituted,

(c)    the appointment of a trustee of property of the estate,

(d)    the powers and duties of a trustee of property of the estate, including any trustee constituted or appointed under this section,

(e)    the vesting in any person of property of the estate,

(f)    the exercise of a right or power to obtain property for the estate,

(g)    the sale of or dealing with property of the estate,

(h)    the disposal of the proceeds of any sale or other realising of property of the estate,

(i)    the securing, either wholly or partially, of the due performance of an order under this Part,

(j)    the management of the property of the estate,

(k)    the execution of any necessary conveyance, document or instrument, the production of documents of title or the doing of such other things as the Court thinks necessary in relation to the performance of the family provision order,

(l)    any other matter the Court thinks necessary.

(2) The Court may make such additional orders as it considers necessary to adjust the interests of any person affected by a family provision order and to be just and equitable to all persons affected by the order.

(3) The execution of an instrument relating to property in the notional estate of a deceased person pursuant to an order under this section is not liable to duty under the Duties Act 1997.

119. The power in s 66(2) is to make “additional orders”, that is, in addition to a family provision order pursuant to s 59. The family provision order I propose to make (substituting a life interest in Breakfast Point for the life interest in Pindimar) will have the effect of reducing the residue of the estate available for distribution to the four residuary beneficiaries who, under the Will, are to share equally in the residue. Each of them will therefore be a “person affected by a family provision order”. There is no question in this case that if the power in s 66(2) is engaged, the power extends to adjusting the equal provision made under the Will by reducing the share of one or more of those beneficiaries in the distribution to be made of the residue.

120. The power is engaged if the Court considers such orders “necessary to adjust the interests of any person affected by a family provision order and to be just and equitable to all persons affected by the order.” That gives rise to questions of natural justice. More generally, the words “just and equitable” embrace a very wide range of considerations. Given that the persons who would be affected by the order are the four adult residuary beneficiaries, all members of the same family, who all share equally in the residue under the Will, their attitude to any order adjusting their interests is itself a matter that may bear on the question whether such an order is necessary to be just and equitable to them.

121. As I said in the Reasons at J[319] (emphasis supplied):

“… no party asked me to make an order pursuant to s 66(2) adjusting the residuary beneficiaries’ interests. The defendant rejected any suggestion that I should do so. Nevertheless, given the basis on which I have concluded that the s 59 power is engaged, and the provision in favour of the plaintiff that I propose to order, it is appropriate to confirm whether the defendant’s submission reflects all the residuary beneficiaries’ wishes, as I have understood.”

122. I discussed two possible approaches to this issue in the Reasons.

123. The first arose directly out of the reasoning at J[308]-[318], i.e., the basis on which I concluded that the s 59 power was engaged. In particular, at J[312] I referred to the availability of an order pursuant to s 66(2) reducing Madison’s share in the residue by an amount equivalent to the difference in the values of Breakfast Point and Pindimar (i.e., at the high end of the range, $350,000), and to the effect that would have on the provision made for Madison. At J[313] I stated my conclusion that that would be, in all the circumstances of the case, adequate provision for Madison.

124. Thus, when I returned to the s 66(2) question, I said at J[320]:

“One way in which to deal with the residuary beneficiaries’ interests would be to treat Madison’s share in the residue as available to fund the provision to be made in favour of the plaintiff. That is, to exercise the Court’s s 66(2) power to adjust the provision made for Madison downwards by reducing her share in the distribution to be made upon the sale of Pindimar by $350,000, being (at the high end of the valuation range) the difference in value between Pindimar and Breakfast Point. The effect would be that, with respect to Nerida, Louise and Billy, the provision currently made by the Will would be substantially maintained.”

125. Such an order would be consistent with my reasoning at J[308]-[318] as to the relative strength of the claims on the estate of the plaintiff, Madison and the three siblings. For that reason, I would have considered such an order just and equitable to the four residuary beneficiaries, were it not for what I understood to be their unanimous view to the contrary. As I said at J[320]:

But doing that at Madison’s expense would be contrary to the express submission made on behalf of the defendant. It would also be contrary to the testator’s intention of equality. I would not make such an adjustment without giving Madison and the three siblings an opportunity to be heard on the question whether the order was “just and equitable” within the meaning of s 66(2).

126. On that basis, I then contemplated the possibility of making no order pursuant to s 66(2). As I said, the effect would be that the four residuary beneficiaries would share equally the burden of the provision I proposed to make in favour of the plaintiff: at J[321]. I said that, subject to the directions I proposed to give affording the residuary beneficiaries an opportunity to submit that I should make a s 66(2) order, I did not propose to make a s 66(2) order.

127. My understanding that the four residuary beneficiaries were united in opposing any adjustment to their proportionate interests pursuant to s 66(2) has proved to be wrong. As will be seen, on the material before me, the position is that the defendant Nerida is in favour of an adjustment, and none of the other three residuary beneficiaries opposes the proposed adjustment. However, as will be seen, the adjustment is intended to be only with respect to the timing of distributions to Madison, rather than an absolute reduction in her entitlement. The proposed adjustment is thus much closer to the approach I had said in the Reasons I proposed to take, namely, to make no s 66(2) order, such that the four residuary beneficiaries would share equally the burden of the provision I proposed to make in favour of the plaintiff.

128. Pursuant to the directions that I gave, the defendant filed discrete submissions to the effect that an order should be made pursuant to s 66(2). The effect of the proposed order would be to defer the payment to Madison of $250,000 of her share of the residue until Breakfast Point (or whatever asset it has been turned into) is sold, rather than absolutely reducing her share in the residue by $350,000 as I had contemplated in the Reasons. Save for the time value of money, the effect of the proposed order is not otherwise to adjust the beneficiaries’ interests. The detailed mechanics of the order to give effect to the adjustment were set out in an annexure to the defendant’s submissions. The defendant made clear that these submissions were filed in the alternative in the event that her application for leave to reopen was unsuccessful.

129. The defendant tendered correspondence addressed to each of Louise, Billy and Madison indicating that the defendant intended to submit that such an order should be made. I am satisfied that each of those persons had sufficient notice of that submission and the proposed orders. However, none of them was before the Court, either in person or by a lawyer, at the hearing of the notice of motion, and there is no evidence, even in the form of a response to the correspondence, of their attitude to the proposed order. In those circumstances, I cannot assume that Louise, Billy or Madison affirmatively supports the proposed adjustment; it is entirely possible that they do, but there is an absence of evidence either way. However, I understood the defendant’s position to be, and I accept, that the Court should infer from the fact that they are not before the Court that none of the residuary beneficiaries opposes the proposed s 66(2) order.

130. I approach the question whether to order the proposed adjustment as follows.

131. First, in the absence of unanimous opposition to making any adjustment at all, I am satisfied that it is necessary to adjust the interests of the residuary beneficiaries (who will all be “affected by [the] family provision order” I propose to make in favour of the plaintiff), for the reasons identified in the Reasons and discussed above. The question is whether I consider the proposed s 66(2) order to be just and equitable to all persons affected by the family provision order, that is, all four residuary beneficiaries, when it involves less than the absolute reduction in Madison’s share that I contemplated in the Reasons.

132. Insofar as the defendant is concerned, in circumstances where she proposes the s 66(2) order, I am satisfied that the order is just and equitable to her in her capacity as a residuary beneficiary.

133. Insofar as Madison is concerned, the proposed adjustment is adverse to her interests, but to a considerably lesser extent than the one I contemplated in the Reasons in two respects. First, in the short term, the proposed reduction in her share of the residue to be distributed in the near future will be $250,000, not $350,000. Secondly, in the long term, the effect of the proposed orders is that she will ultimately recover that $250,000 (although without interest) from the proceeds of sale of Breakfast Point (or whatever asset it has been turned into). That is in circumstances in which it is highly likely that Madison will survive the plaintiff. I am satisfied that it is just and equitable to Madison to make the proposed s 66(2) order.

134. Insofar as Louise and Billy are concerned, the proposed adjustment is not adverse to their interests (i.e., compared to making no s 66(2) order at all). However, the proposed adjustment is less generous to them than the one I contemplated in the Reasons. On the findings in the Reasons, the effect of the defendant’s proposed adjustment will be that in the short term, Nerida, Louise and Billy will each bear part of the burden of the provision I propose to make in favour of the plaintiff to the extent of about $33,000 ($350,000 — $250,000 = $100,000; $100,000/3 = $33,333.33). In the longer term, in the event that they survive the plaintiff so as to share in the ultimate proceeds of Breakfast Point, they will each bear the burden of the provision in favour of the plaintiff to the extent of about $83,000 ($250,000/3). In determining whether the proposed s 66(2) order is just and equitable to Louise and Billy, I consider it important that neither of them opposes carrying the burden, to that extent, of the provision I propose to make.

135. Counsel for the plaintiff, who was not interested in this issue, helpfully submitted in answer to a question from the Court that:

“the defendant as executor has the responsibility of defending the case on behalf of the estate. They have the responsibility of leading evidence about the beneficiaries’ financial circumstances if they choose to elect to do that, which has happened, and also to make submissions about what should happen either on the plaintiff’s application or with respect to fulfilling that role. The defendant will have an obligation to consult, which I understand has happened. The evidence before your Honour includes correspondence to the beneficiaries but not any responses. So the question then is whether there is sufficient evidence of consultations or otherwise the Court has sufficient comfort from my friend’s submission that that has occurred.”

(Tcpt, 19 May 2025, 56,44-55.4)

136. Counsel for the defendant confirmed that the defendant, who is represented by experienced solicitors, had met her obligations, including to consult, as summarised by counsel for the plaintiff: Tcpt, 19 May 2025, 60.7-21. Counsel for the defendant also emphasised that there had been no direction requiring the residuary beneficiaries to say whether or not they affirmatively consented to an adjustment; the length of time the dispute has been running; the corresponding strain on the mental health of the residuary beneficiaries; and the interest of justice in finality: Tcpt, 19 May 2025, 59.38-60.5.

137. In circumstances where:

1. because of my directions given on 10 April 2025, Louise and Billy have been on notice of J[308]-[321] of the Reasons (which included consideration of the alternative possible s 66(2) orders) for over a month;

2. an extension of time was sought (and granted) to the timetable I had ordered, in part so that the beneficiaries might have the opportunity to obtain independent legal advice;

3. the defendant represents the interests of the estate and has complied with her obligation to consult with the beneficiaries about what should happen on the plaintiff’s application; and

4. neither Louise nor Billy opposes the proposed order;

I am satisfied that the proposed order is just and equitable to Louise and Billy.

138. That being so, I am satisfied that the proposed order is necessary to adjust the interests of the residuary beneficiaries as persons affected by the family provision order I propose, and that it is just and equitable to all persons affected by the order. The s 66(2) power is engaged, and I am satisfied that I should exercise it to make the order proposed by the defendant.

139. That makes it unnecessary to determine a question raised by the defendant, namely, whether notwithstanding my refusal of the application to reopen, the evidence of the recent sale of Pindimar for $1.2 million could be taken into account in determining whether to make an order pursuant to s 66(2). Both parties submitted to me that the s 66(2) question involved a separate application from the plaintiff’s application for family provision: Tcpt, 19 May 2025, 56/1. I understood the argument to be that evidence of the sale could be admitted on the separate application. The defendant wished to rely on that evidence to demonstrate that the proposed s 66(2) order would be just and equitable to all the residuary beneficiaries. I understood the argument to be that the effect of the provision I propose to order in favour of the plaintiff will be to reduce the amount available for distribution to the residuary beneficiaries by $700,000. That sum on any view exceeds, and therefore could not be funded entirely out of, Madison’s share of the residue, and so each of Nerida, Louise and Billy would have to share part of the burden of the provision in favour of the plaintiff. It would accordingly be necessary to make a negative adjustment of some kind to the interests of Nerida, Louise and Billy.

140. The question was not the subject of detailed submissions or consideration of authority. For that reason it is preferable not to determine it. However, there are reasons to doubt the correctness of the defendant’s position that my refusal of the application to reopen is not an impediment to admission of the evidence of the sale for purposes of resolving the s 66(2) issue. As a matter of procedure, s 66(2) is not expressed in terms of a separate application, but rather of “additional orders”; and in this case the question whether there should be a s 66(2) adjustment arose in the course of my determining issues on the plaintiff’s summons, rather than on any separate application made to me. More significantly, as a matter of substance, the s 66(2) power is only engaged where someone’s interests are “affected by a family provision order”, and the order must be “just and equitable to all persons affected by the order”. Given those matters, it seems to me implicit in the subsection that the basis on which the question whether the s 66(2) order is just and equitable is to be determined cannot be in fundamental conflict with the basis on which the Court reached the state of satisfaction for the purposes of s 59 that led to the family provision order. The plaintiff herself is a person affected by the family provision order. Thus, whether or not in some circumstances additional evidence might be admitted on the question of what is just and equitable, there is reason to doubt that such evidence could be admitted for the purpose of contradicting the basis upon which the Court decided the s 59 questions.

Costs

141. The parties were agreed that the defendant’s costs should be paid out of the estate of the deceased on the indemnity basis. Although I have experienced some disquiet about the extent to which the defendant says her costs have exceeded the estimate given to the Court, there is no information before me as to the circumstances in which that occurred, and there was in any event no application or submission directed to that issue. These are ultimately matters for the residuary beneficiaries. If they are concerned about the amount of costs, as counsel for the plaintiff (who is not a residuary beneficiary) pointed out in answer to a question I asked, there are avenues they can pursue to ventilate that question.

142. The plaintiff sought an order that her costs be paid out of the estate of the deceased on the ordinary basis. She submitted that she had a significant measure of success on her application, as I had pointed out in the Reasons at J[328], and that costs should follow the event. I accept those submissions. As the plaintiff submitted, although she did not achieve the full provision she sought (the fee simple in Breakfast Point), the evidence and the hearing were not lengthened because she sought that provision as opposed to a flexible life estate in the same property. The plaintiff’s claim for the small sum of money she sought on account of a motor vehicle involved very little evidence and occupied next to no time at the hearing.

143. The defendant submitted that:

1. if her application for leave to reopen was granted and no order for provision was made out of the estate, the Court should order that the plaintiff’s costs be paid out of the estate on the ordinary basis;

2. but if the application for leave to reopen was unsuccessful, the plaintiff’s costs should be paid out of the estate in the amount of $90,000 only.

144. The (again somewhat bizarre) effect of the defendant’s submission is that the plaintiff should be in a worse position as to costs if she succeeds in the proceeding than if she fails.

145. The defendant’s argument amounted to this: that because her own costs were greater than those she had estimated, it was a proper exercise of the power with respect to costs to cap the costs payable out of the estate in favour of the plaintiff in order to maintain a certain level of distribution to the residuary beneficiaries, in particular, to Madison.

144. That submission should be rejected for two reasons.

145. First, to the extent that the submission turns on the effect on the provision contemplated in the Reasons of evidence about the defendant’s incurred costs which departs from the estimate given at the hearing, it amounts to a reopening, contrary to my refusal of that application. As the plaintiff’s counsel submitted, the defendant should be bound by her estimate at the hearing: Tcpt, 19 May 2025, 55.23-30.

146. Secondly, it is not in dispute that, as the defendant submits, “in considering an amount by way of provision, it is appropriate also to have regard to the diminution of the estate on account of legal costs”: Defendant’s submissions on costs dated 6 May 2025 at [8]. But what the defendant proposes is the reverse: that in considering an appropriate costs order, the Court should have regard to the effect of the costs order on the provision made by the Will or to be ordered by the Court. The defendant was unable to point to any authority in support of that approach. Although the Court’s power with respect to costs pursuant to s 98 of the Civil Procedure Act is undoubtedly wide, it seems to me that the defendant’s approach is wrong in principle. The consideration of the extent of any provision made under a will for the purposes of s 59, and the determination of any provision to be ordered pursuant to s 59 or to be adjusted pursuant to s 66(2), must occur having regard to the assets and liabilities of the estate. The defendant’s submission amounts to an attempt, by an exercise of the costs power adverse to the successful plaintiff, to adjust the liabilities of the estate in order to drive the amount of the provision to the residuary beneficiaries.

147. In any event, I do not consider the defendant’s approach to be one I should adopt in the present case so as to depart from the usual order as to costs.

Conclusion and orders

150. It follows from the above that I should make the orders I proposed in the Reasons for provision in favour of the plaintiff, together with the orders for which the defendant contends with respect to s 66(2). I will also make costs orders in accordance with the reasons above.

151. The orders I will make are as follows:

1. Order pursuant to s 59 of the Succession Act 2006 (NSW), provision is to be made to the plaintiff, in lieu of the provision made in the Will of William Harvey Fisher dated 23 July 2015 (Will) in the amount and nature and in the manner as so described:

1. “the residence” defined in the Will is to be read as the property at [Redacted] (the Breakfast Point Property) not the property at [Redacted] (the Pindimar Property); and

2. the provision otherwise provided to the plaintiff in the Will to remain in all other respects the same.

2. Pursuant to s 66(2) of the Succession Act 2006 (NSW), the Court orders that, as between Louise Ann Gaggin, Nerida Jean Favre, William Stanley Fisher and Madison Jade Fisher, their interests under the Will be adjusted as follows:

1. Any part, section, portion or percentage of the estate of William Harvey Fisher that under the terms of the Will is held on trust for Madison Jade Fisher and that Madison Jade Fisher has a right to distribution of under the Will (excepting any such part, section, portion or percentage connected with or arising out of the Breakfast Point Property under clause 6 of the Will as reflected per Order 1 above) shall, at the time of distribution be adjusted and reduced by $250,000;

2. At the time of distribution the $250,000, be divided in equal shares and paid to Louise Ann Gaggin, Nerida Jean Favre and William Stanley Fisher not to Madison Jade Fisher;

3. Clause 6.7 of the Will be adjusted so as on the distribution date described in that clause, prior to the operation of clause 6.7, whatever amount has been distributed to Louise Ann Gaggin, Nerida Jean Favre and William Stanley Fisher pursuant to Order 2(b) above, be deducted from the division of the residence, its proceeds of sale or any remainder interest payable to the estate from any aged care housing arrangement and be paid to Madison Jade Fisher. Whatever balance remains is then to be dealt with pursuant to clause 6.7 of the Will;

4. The interests of Louise Ann Gaggin, Nerida Jean Favre, William Stanley Fisher and Madison Jade Fisher as set out in the Will to remain in all other respects the same.

3. The plaintiff’s costs be paid out of the estate of the deceased on the ordinary basis.

4. The defendant’s costs be paid out of the estate of the deceased on the indemnity basis.

5. The summons otherwise be dismissed.

6. The notice of motion be dismissed with costs.

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