Carey v Robson

[2010] NSWCA 212

New South Wales

Court of Appeal

CITATION:	Carey v Robson [2010] NSWCA 212
HEARING DATE(S):	19 August 2010
JUDGMENT DATE:	19 August 2010
JUDGMENT 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 191
PARTIES:	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

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CA 2010/21649

HODGSON JA
CAMPBELL JA
SACKVILLE AJA

THURSDAY 19 AUGUST 2010

Marion Allinson CAREY v Alan Frederick William ROBSON

Judgment

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 Marion and Rosemary each brought proceedings under the Family Provision Act 1982 (the Act) (since repealed), in each case naming the other two executors as defendants.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…