Basten JA at [1]; Barrett JA at [29]; Gleeson JA at [150]
Decision:
1. Appeal allowed.
2. Set aside the order 1 made by Pembroke J on 21 February 2014 and the orders made by Pembroke J on 17 April 2014 and order instead as follows:
"(1) Order that the proceedings brought by the first plaintiff be dismissed.
(2) Without prejudice to interlocutory costs orders previously made, order that the first plaintiff pay one-half of the costs of the defendant up to and including 10 February 2014 and the whole of the defendant's costs thereafter."
3. Order that the respondent pay the appellant's costs of the appeal and that a certificate under the Suitors' Fund Act 1951 (NSW) be granted to the respondent.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:
SUCCESSION - family provision - application for family provision order under Part 3 Succession Act 2006 (NSW) - application by adult grandson - deceased left whole estate to his only child (applicant's mother) - estate consisting principally of the deceased's interest in a grazing enterprise part owned by the sole beneficiary - primary judge ordered payments totalling $387,000 to applicant grandson - failure to articulate any cogent basis for departing from the testator's scheme of benefaction in favour of his only child - no such basis available on the evidence - evaluative judgment miscarried - principles relevant to family provision claims by grandchildren discussed - PROCEDURE - costs - costs in family provision cases - principle that costs follow the event generally applicable - unsuccessful applicants should not expect that, as a general rule, the costs discretion will be applied so as to exempt them from liability for costs.
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Chapple v Wilcox [2014] NSWCA 392
Case
[2014] NSWCA 392
Decision Date
CaseChat Overview and Summary
The appeal in *Chapple v Wilcox* concerned an application for a family provision order under the *Succession Act 2006* (NSW). The applicant was the adult grandson of the deceased, who had left his entire estate to his only child, the applicant's mother. The estate was primarily comprised of the deceased's interest in a grazing enterprise, which was co-owned by the sole beneficiary. The primary judge had ordered payments totalling $387,000 to the grandson.
The legal issues before the Court of Appeal were whether the primary judge had erred in making a family provision order in favour of the grandson, and whether the primary judge had failed to articulate a sufficient basis for departing from the deceased's testamentary intentions. The court also considered the principles applicable to family provision claims brought by grandchildren and the general approach to costs in such proceedings.
The Court of Appeal found that the primary judge had miscarried in their evaluative judgment. The court held that there was no cogent basis in the evidence to justify departing from the deceased's clear scheme of benefaction in favour of his only child. The court reiterated the principles relevant to family provision claims by grandchildren, emphasising that such claims require strong justification. Furthermore, the court affirmed the general principle that costs follow the event in family provision cases, and that unsuccessful applicants should not ordinarily expect to be exempted from liability for costs.
The Court of Appeal allowed the appeal, setting aside the primary judge's orders for provision and costs. Instead, the court ordered that the grandson's proceedings be dismissed and that he pay a significant portion of the defendant's costs. The respondent was ordered to pay the appellant's costs of the appeal, with a certificate granted under the *Suitors' Fund Act 1951* (NSW).
Orders
Orders of the court
1. Appeal allowed.
2. Set aside the order 1 made by Pembroke J on 21 February 2014 and the orders made by Pembroke J on 17 April 2014 and order instead as follows:
"(1) Order that the proceedings brought by the first plaintiff be dismissed.
(2) Without prejudice to interlocutory costs orders previously made, order that the first plaintiff pay one-half of the costs of the defendant up to and including 10 February 2014 and the whole of the defendant's costs thereafter."
3. Order that the respondent pay the appellant's costs of the appeal and that a certificate under the Suitors' Fund Act 1951 (NSW) be granted to the respondent.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]