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Baldwin v Favre (No 2)

Baldwin v Favre (No 2)

Case [2025] NSWSC 540 28 May 2025

Civil Litigation & Procedure

Succession Law

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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

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.
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…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Baldwin v Favre (No 2)

Details

AGLC: Baldwin v Favre (No 2) [2025] NSWSC 540
Case: [2025] NSWSC 540
Decision Date: 28 May 2025

CaseChat Overview and Summary

The appeal in Baldwin v Favre (No 2) was brought by the applicant, Baldwin, against Favre, the executor of the estate of Favre’s late father. Baldwin sought leave to reopen the case to adduce evidence and make submissions on the application of the Court’s reasoning to new facts. The application was made after the delivery of reasons but before final orders. Baldwin claimed that the evidence was previously unavailable to him and sought to establish the present capital value of an asset. The court had to decide whether the evidence would change the result and whether reopening would cause prejudice to the other party.

The legal issues revolved around the application for leave to reopen the case to adduce evidence and make submissions on the application of the Court’s reasoning to new facts. The court considered whether the evidence was previously unavailable to the applicant, whether the applicant provided an explanation for not raising the issue earlier, and whether reopening the case would cause prejudice to the other party. The court also had to determine whether the scope of the reopening was uncertain and whether the new evidence would change the result.

The court held that the application for leave to reopen the case should be refused. The court found that the evidence was not previously unavailable to Baldwin, and Baldwin did not provide an explanation for not raising the issue earlier. The court also found that reopening the case would cause prejudice to Favre, the executor of the estate. Additionally, the court found that the scope of the reopening was uncertain, and the new evidence would not change the result. Therefore, the court refused leave to reopen the case.

The final orders of the court were that leave to reopen the case was refused. The court also made an order adjusting the interests under the Succession Act 2006 (NSW), s 66(2), where there was no unanimous opposition to the making of the adjustment.

Orders