Blendell v Blendell

Case [2020] NSWCA 154


Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Blendell v Blendell; Blendell v Blendell [2020] NSWCA 154
Hearing dates: 4 December 2019
Decision date: 24 July 2020
Before: Meagher JA at [1]; Gleeson JA at [76]; Leeming JA at [77]
Decision:

(1) In proceeding 2019/207900, appeal dismissed with costs.

(2) In proceeding 2019/207924, appeal dismissed with costs.

Catchwords:

SUCCESSION – Family provision – Appeal against order for provision in favour of two adult children – Where whole of estate left to deceased’s husband – Where failure by one applicant to produce documents relevant to that applicant’s financial circumstances – Where evidence as to value of other applicant’s assets unreliable – Whether failure to comply with notice to produce a basis for rejecting application for provision – Whether Court had sufficient evidence of each applicant’s financial position – Whether primary judge had regard to 50 year marital relationship between deceased and her husband as sole beneficiary, and deceased’s decision to leave all of her estate to him – Appeal dismissed.

Legislation Cited:

Civil Procedure Act 2005 (NSW), ss 56(2), (3)

Succession Act 2006 (NSW), ss 59(1)(c), (2), 60(2)(a), (d), (m)

Testator’s Family Maintenance and Guardianship of Infants Act 1916 (NSW), s 3(2)

Uniform Civil Procedure Rules 2005 (NSW), r 34.2(1)

Cases Cited:

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

Azar v Kathirgamalingan [2012] NSWCA 429

Bartlett v Coomber [2008] NSWCA 100

Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392

Collings v Vakas [2006] NSWSC 393

Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303; [2013] HCA 46

Hwang v Lawrie [2014] 1 Qd R 562; [2013] QCA 204

In re the Will of FB Gilbert (1946) 46 SR (NSW) 318

Nicholls v Hall [2007] NSWCA 356

Phillips v James (2014) 85 NSWLR 619; [2014] NSWCA 4

Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1; [2018] HCA 4

PT Garuda Indonesia Ltd v Australian Competition and Consumer Commission [2020] FCA 685

Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; [1962] HCA 19

Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40

Stone v Stone [2019] NSWSC 233

Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285

Young v Jackman (1986) 7 NSWLR 97

Category:Principal judgment
Parties:

2019/207900
Michael James Blendell (appellant)
Julian Karl Blendell (respondent)

2019/207924
Michael James Blendell (appellant)
Dominic James Blendell (respondent)
Representation:

Counsel:
L Ellison SC / D Liebhold (appellant)
S T O’Brien / C L W Street (respondents)

Solicitors:
Prime Lawyers (appellant)
Serenity Legal (respondent)
File Number(s): 2019/207900; 2019/207924
Publication restriction: N/A
 Decision under appeal 
Court or tribunal:
Supreme Court of New South Wales
Jurisdiction:
Equity Division
Citation:

[2019] NSWSC 583

Date of Decision:
20 May 2019
Before:
Hallen J
File Number(s):
2017/182524; 2017/182545

Judgment

  1. MEAGHER JA: The appellant, Michael Blendell, is the husband of Noeline Blendell,…

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Details
AGLC
Blendell v Blendell [2020] NSWCA 154
Case
[2020] NSWCA 154
Decision Date

CaseChat Overview and Summary

The appeal concerned an application for provision from the estate of the deceased, brought by two adult children. The deceased had left her entire estate to her husband, who was the sole beneficiary under the will. The applicants sought provision from the estate, and the primary judge had made orders in their favour. The husband appealed these orders.

The central legal issues before the Court of Appeal were whether the primary judge had sufficient evidence of each applicant's financial position to make an informed decision, and whether the failure by one applicant to produce relevant documents concerning their financial circumstances constituted a basis for rejecting their application for provision. The Court also considered whether the primary judge had adequately had regard to the deceased's decision to leave her entire estate to her husband, with whom she had shared a 50-year marital relationship.

The Court of Appeal found that despite the failure of one applicant to produce all requested documents, the primary judge had still been able to form a sufficient view of their financial position. Similarly, the evidence regarding the other applicant's assets, while perhaps not entirely free from doubt, was deemed sufficient for the primary judge's assessment. The Court held that the primary judge had properly considered all relevant factors, including the deceased's testamentary intentions and the long marital relationship, when making the provision orders.

Consequently, the appeals were dismissed with costs.

Orders

Orders of the court

(1) In proceeding 2019/207900, appeal dismissed with costs.

(2) In proceeding 2019/207924, appeal 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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