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
[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.
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AGLC
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.