New South Wales
Court of Appeal
CITATION: Carey v Robson [2010] NSWCA 212 HEARING DATE(S): 19 August 2010
JUDGMENT DATE:
19 August 2010JUDGMENT OF: Hodgson JA at [1], [41]; Campbell JA at [39]; Sackville AJA at [40] EX TEMPORE JUDGMENT DATE: 19 August 2010 DECISION: Appeal dismissed with costs. CATCHWORDS: FAMILY PROVISION – Unequal and allegedly disproportionate gifts to children – Whether primary judge erred in holding that plaintiff had not been left without adequate provision for her proper maintenance and advancement. LEGISLATION CITED: Family Provision Act 1982 ss 7, 9. CATEGORY: Principal judgment CASES CITED: Carey v Robson & Anor; Nicholls v Robson & Anor [2009] NSWSC 1142
Foley v Ellis [2008] NSWCA 288
House v The King [1936] HCA 40; (1936) 55 CLR 499
Mifsud v Campbell (1991) 21 NSWLR 725
Singer v Berghouse (No 2) [1994] HCA 40; (1994) 181 CLR 201
Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191PARTIES: Marion Allinson CAREY (appellant)
Alan Frederick William ROBSON (respondent)FILE NUMBER(S): CA 2010/21649 COUNSEL: L J ELLISON SC/ R M LOVAS (appellant)
J E ROBSON SC/ G R WAUGH (respondent)SOLICITORS: Kerrisons The Law Firm (appellant)
W A Baxter & Co Pty Ltd (respondent)LOWER COURT JURISDICTION: Supreme Court - Equity Division LOWER COURT FILE NUMBER(S): SC 4842/07; SC 5215/07 LOWER COURT JUDICIAL OFFICER: Palmer J LOWER COURT DATE OF DECISION: 28 October 2009 LOWER COURT MEDIUM NEUTRAL CITATION: Carey v Robson & Anor; Nicholls v Robson & Anor [2009] NSWSC 1142
CA 2010/21649
THURSDAY 19 AUGUST 2010HODGSON JA
CAMPBELL JA
SACKVILLE AJA
1 HODGSON JA: The late Frederick Robson died on 5 April 2006 aged eighty-six, leaving a will dated 21 July 2005. He was survived by two daughters and one son, his wife having pre-deceased him. I will refer to members of the testator’s family by their first names, as did the primary judge.
2 Probate of the testator’s will was granted to the three children, Alan, Marion and Rosemary. Marion and Rosemary each brought proceedings under the Family Provision Act 1982 (the Act) (since repealed), in each case naming the other two executors as defendants. On 28 October 2009, Palmer J gave his decision dismissing both proceedings (Carey v Robson & Anor; Nicholls v Robson & Anor [2009] NSWSC 1142). On 10 November 2009, the primary judge made orders as to costs. Marion has appealed against the dismissal of her proceedings.
3 The background facts to the application were set out by the primary judge, in a manner not in dispute, at paras [5] – [12] of his judgment, as follows:
[5] The testator was born in 1920. He married Margaret in 1955 and the marriage lasted until Margaret’s death in 2005. There were three children of the marriage, Alan (born in 1958), Marion (born in 1960) and Rosemary (born in November 1963).
[6] The testator spent all his life on…
Continue reading Carey v Robson
Sign in free to access the full text
- AGLC
- Carey v Robson [2010] NSWCA 212
- Case
- [2010] NSWCA 212
- Decision Date
CaseChat Overview and Summary
The central legal issue before the Court of Appeal was whether the primary judge had erred in finding that the plaintiff had not been left without adequate provision for her proper maintenance and advancement. This required the court to consider the deceased's testamentary intentions, the plaintiff's circumstances, and the extent to which the gifts to other beneficiaries might be considered disproportionate or unfair in the context of family provision legislation.
The Court of Appeal ultimately dismissed the appeal. While the specific reasoning of the primary judge and the Court of Appeal is not detailed in the provided text, the outcome indicates that the court found no error in the primary judge's assessment that the plaintiff had received adequate provision. The court upheld the original decision, implying that the deceased's testamentary disposition, despite any alleged inequalities, met the legal threshold for proper maintenance and advancement under the relevant family provision legislation. The appeal was dismissed with costs awarded to the respondent.
Orders
Orders of the court
Appeal dismissed with costs.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.