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 each respondents’ proper maintenance;

(2)   His Honour failed to give adequate reasons for his decision;

(3) His Honour erred in failing to make an order for indemnity costs in circumstances where the applicant had made an offer of compromise under the Uniform Civil Procedure Rules 2005 (NSW) and the result achieved by the respondents in the proceedings were less favourable than the offer.

5. When asked to address the question of leave, senior counsel for the applicant focused his argument on the manner in which the primary judge had dealt with the offers of compromise.

6. The principles governing the grant of leave in this Court are well established. As was stated in Carolan v ALF Bowling Pty Limited [1995] NSWCA 69, ordinarily it is appropriate to grant leave to appeal only in matters that involve issues of principle, questions of general public importance or an injustice which is reasonably clear in the sense of going beyond what is merely arguable. In the same case, Cole JA drew attention to the principle that, where small claims are involved, it is important that there be early finality in the determination of the litigation, otherwise the costs involved are likely to swamp the money sum involved in the dispute.

7. As we have already indicated, the parties accepted that the amount involved in respect of each respondent was in the order of $37,000, an amount which is significantly below the threshold above which leave to appeal is not required. This amount is small in relation to the value of the estate and, as Cole JA pointed out in Carolan and which we would emphasise, the amount of costs involved in this dispute is disproportionate to the amount in issue, should leave to appeal have been granted.

8. Further, we discern no error of principle in his Honour's reasons. His Honour's determination, both as to the claim and as to costs, involved the exercise of a discretion which turned on the particular facts in each respondent’s case. In this regard, no House v The King (1936) 55 CLR 499; [1936] HCA 40 error has been demonstrated to warrant appellant intervention.

9. There was an issue at first instance which the applicant sought to re-agitate on the appeal, if leave was granted, as to whether the respondents’ respective claims were confined to the provision of accommodation. In the Court's view, the claims were not so confined, as is apparent from his Honour's reasons at [46]. In that paragraph, his Honour identifies the respondents’ claims as being for a sum sufficient to purchase accommodation, together with a fund for contingencies.

10. We acknowledge that in the course of argument at trial it appeared to be accepted, at least by the first respondent, that if the claim for accommodation failed, her needs were able to be met by the lump sum provision in the will. However, at the end of the day it was a matter for his Honour to determine whether adequate provision had been made. As is apparent from his Honour’s reasons, each respondent had secure, albeit rented, accommodation, but each had been left without adequate provision sufficient to alleviate, to some extent, their respective “straitened circumstances” and to provide in a limited way for their financial security in old age.

11. In the circumstances, his Honour's discretion was not confined to, as is alleged by the applicant, nor are we persuaded that the respondents’ cases should be restricted to, a claim for accommodation only, such that if a claim of that nature was unsuccessful, the claim for adequate provision itself would fail. Nor was there any error in his Honour determining, in the exercise of his discretion, that it was appropriate to maintain the parity between the respondents in accordance with the deceased's testamentary wishes as expressed in her will.

12. It will be apparent from what we have said, that we consider that his Honour's reasons were adequate to disclose the bases upon which he determined the respondents’ claims. This is so notwithstanding that his Honour did not articulate in any accounting sense the reason why he allowed the uplift that he did in the provision made by the deceased. However, as a matter of principle, no such accounting exercise was required.

13. As we have already noted, there was no error in his Honour’s costs orders as the respondents contended. Given the conditional nature of the offers made by the applicant, there is considerable doubt whether the offers were capable of acceptance. In any event, his Honour had a discretion as to costs and it has not been demonstrated that there was any relevant error in the order made. Accordingly, the summons for leave to appeal is dismissed.

[DISCUSSION ON COSTS]

14. The orders the Court makes are:

(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.

**********

Decision last updated: 28 September 2016