Bassett v Bassett

Case [2021] NSWCA 320


Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Bassett v Bassett [2021] NSWCA 320
Hearing dates: 25 October 2021
Date of orders: 16 December 2021
Decision date: 16 December 2021
Before: Bell P; Leeming JA; Payne JA
Decision:

1.        Appeal allowed with costs other than with respect to Ground 11.

2.        Merilyn and Bruce to pay Geoff's costs in relation to Ground 11.

3.       Set aside order 3 made on 12 March 2021 and orders 1(ii), (iii) and (iv), 2(i) and (iii) and 3(i) and (iii) made on 27 April 2021 and, in lieu thereof, order that:

(a) Geoff’s family provision claim under s 59 of the Succession Act 2006 (NSW) be dismissed;

(b) Geoff pay the Estate’s costs of the family provision claim under s 59 of the Succession Act 2006 (NSW) and his estoppel claim up until and including 28 June 2019, but there be no order as to the parties’ costs in respect of those claims thereafter;

(c)     Merilyn and Bruce be indemnified in respect of their costs of defending Geoff’s family provision and estoppel claims, such indemnity to be met from their respective shares of the Estate (and not Sue’s share);

(d)    Merilyn and Bruce pay Geoff’s costs of the First Cross-Claim on the ordinary basis and not be entitled to indemnity out of the Estate in respect of their costs of the First Cross-Claim.

4.        Application for leave to cross-appeal be dismissed with costs.

Catchwords:

SUCCESSION – Family provision – claim by adult son for provision from the deceased’s estate pursuant to s 59 of the Succession Act 2006 (NSW) – where primary judge erred in her conclusion that adequate provision had not been made for the adult son’s proper maintenance and advancement in life – where adult son had remained on farming land but had received earlier significant benefits from his parents recognised as an “early inheritance” – extent to which anticipated adverse costs liability from non family provision claim should affect analysis of adequate provision

COSTS – Offers of compromise – where offers of compromise were capable of acceptance and did represent a genuine element of compromise – where although the offeror could be said to have obtained a judgment no less favourable than the terms of the offer within the meaning of the Uniform Civil Procedure Rules 2005 (NSW) r 42.14(2), the Court “ordered otherwise” as to costs

Legislation Cited:

Civil Procedure Act 2005 (NSW) ss 56, 58, 60

Evidence Act 1995 (NSW) s 131

Family Provision Act 1982 (NSW)

Limitation Act 1969 (NSW) s 47(1)(c)

Probate and Administration Act 1898 (NSW) s 66

Succession Act 2006 (NSW) ss 59, 60(2)

Supreme Court Act 1970 (NSW) ss 75A, 101(2)

Trustee Act 1925 (NSW) s 59(4)

Uniform Civil Procedure Rules 2005 (NSW) rr 20.26, 42.14, 42.25

Cases Cited:

Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308

Be Financial Pty Ltd as trustee for Be Financial Operations Trust v Das [2012] NSWCA 164

Bienstein v Bienstein (2003) 195…

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Bassett v Bassett [2021] NSWCA 320
Case
[2021] NSWCA 320
Decision Date

CaseChat Overview and Summary

In *Bassett v Bassett*, the appeal concerned a family provision claim brought by an adult son, Geoff, against his deceased parents' estate. The primary judge had found that adequate provision had not been made for Geoff's proper maintenance and advancement in life. The appeal also involved issues relating to costs, specifically concerning offers of compromise made under the Uniform Civil Procedure Rules 2005 (NSW).

The Court of Appeal was required to determine whether the primary judge erred in her conclusion that Geoff had not received adequate provision from the estate. This involved considering the extent to which Geoff's receipt of significant benefits from his parents during their lifetime, described as an "early inheritance," should be weighed against his current needs. Furthermore, the court had to assess how an anticipated adverse costs liability from a separate, non-family provision claim should influence the analysis of whether the provision made for Geoff was adequate. The court also considered the application of rule 42.14(2) of the Uniform Civil Procedure Rules 2005 (NSW) regarding costs orders following offers of compromise.

The Court of Appeal allowed the appeal, finding that the primary judge had erred in her assessment. The court reasoned that the substantial benefits Geoff had already received constituted an "early inheritance" and were significant in the context of the overall provision made for him. The court also considered the impact of the potential costs liability from other proceedings. In relation to costs, while the respondents (Merilyn and Bruce) had obtained a judgment no less favourable than their offers of compromise, the court exercised its discretion under rule 42.14(2) to order otherwise.

The Court of Appeal ordered that Geoff's family provision claim be dismissed. Geoff was ordered to pay the Estate's costs of the family provision and estoppel claims up to 28 June 2019, with no order as to costs thereafter. Merilyn and Bruce were to be indemnified from their respective shares of the Estate for their costs of defending Geoff's claims, excluding Sue's share. Merilyn and Bruce were also ordered to pay Geoff's costs of a First Cross-Claim on the ordinary basis, without indemnity from the Estate. The application for leave to cross-appeal was dismissed with costs.

Orders

Orders of the court

1. Appeal allowed with costs other than with respect to Ground 11.

2. Merilyn and Bruce to pay Geoff's costs in relation to Ground 11.

3. Set aside order 3 made on 12 March 2021 and orders 1(ii), (iii) and (iv), 2(i) and (iii) and 3(i) and (iii) made on 27 April 2021 and, in lieu thereof, order that:

(a) Geoff’s family provision claim under s 59 of the Succession Act 2006 (NSW) be dismissed;

(b) Geoff pay the Estate’s costs of the family provision claim under s 59 of the Succession Act 2006 (NSW) and his estoppel claim up until and including 28 June 2019, but there be no order as to the parties’ costs in respect of those claims thereafter;

(c) Merilyn and Bruce be indemnified in respect of their costs of defending Geoff’s family provision and estoppel claims, such indemnity to be met from their respective shares of the Estate (and not Sue’s share);

(d) Merilyn and Bruce pay Geoff’s costs of the First Cross-Claim on the ordinary basis and not be entitled to indemnity out of the Estate in respect of their costs of the First Cross-Claim.

4. Application for leave to cross-appeal be dismissed with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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