Berry v Nicholls

[2016] NSWCA 272

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Berry v Nicholls [2016] NSWCA 272

Hearing dates:

20 September 2016

Decision date:

20 September 2016

Before:

Beazley P;
McColl JA;
Ward JA

Decision:

(1)   Summons for leave to appeal dismissed;

 

(2)   Costs of the applicant on the summons for leave to appeal be paid out of the estate on an indemnity basis;

 (3)   Costs of each respondent be paid out of the estate on the ordinary basis.

Catchwords:

APPEAL – application for leave to appeal from orders making provision out of deceased estate – amount in issue small in relation to value of estate and costs likely to be incurred should appeal be allowed – no error of principle demonstrated in primary judge’s decision

Cases Cited:

Carolan v ALF Bowling Pty Limited [1995] NSWCA 69
House v The King (1936) 55 CLR 499; [1936] HCA 40

Category:

Principal judgment

Parties:

Eric Joseph Berry (Applicant)
Sandra Nicholls (First Respondent)
Diane Figueiredo (Second Respondent)

Representation:

Counsel:
L Ellison SC; D Liebhold (Applicant)
S Chapple (First Respondent)
M Thompson (Second Respondent)

    Solicitors:
Owen Hodge Lawyers (Applicant)
Stacks Law Firm (First Respondent)
Gerard Malouf & Partners (Second Respondent)

File Number(s):

2016/80064

 Decision under appeal 

Court or tribunal:

Supreme Court

Jurisdiction:

Equity

Citation:

[2016] NSWSC 130

Date of Decision:

18 February 2016

Before:

Lindsay J

File Number(s):

2014/166897; 2014/305184

Judgment

1. THE COURT: The applicant, who is the executor of the estate of May Berry, the deceased, seeks leave to appeal from the orders made by Lindsay J on 18 February 2016 and entered on 25 February 2016, making provision out of the estate for the respondents, who are two of the deceased’s daughters, in each case as follows:

“6. Order, pursuant to s 59 of the Succession Act 2006, that [the respective respondent] receive out of the estate of the deceased whichever is greater of:

(a)   a legacy of $225,000 in lieu of the provision made for her in cl 3(iv) of the will of the deceased dated 29 July 1997; or

(b)   the legacy from which that clause of the will provides for her.”

2. His Honour also made an order extending the time within which the second respondent could apply for provision up to and including the date of the proceedings. His Honour further ordered that the costs of the respondents be paid out of the estate on the ordinary basis.

3. The summons for leave to appeal has been listed for hearing concurrently with the appeal, should leave be granted. We have determined that leave to appeal should be refused. We note that the amount in issue in each appeal, insofar as the provision made by his Honour for each respondent is concerned, is in the order of $37,000. Our reasons for refusing leave are as follows.

4. The appellant’s proposed challenges to his Honour's order were, in summary:

(1)   His Honour erred in finding that the provision made for each respondent under the will of the deceased was inadequate for…