New South Wales
Court of Appeal
CITATION: Clifford v Mayr [2010] NSWCA 6 HEARING DATE(S): 26 November 2009
JUDGMENT DATE:
10 February 2010JUDGMENT OF: Campbell JA at 1; Young JA at 150; Handley AJA at 158 DECISION: Appeal allowed. Decision below set aside. Order made for additional provision for the Appellant in nature of specific devise of the family home, subject to a charge for an indexed capital sum for each child, (on terms that the charge may be transferred at Appellant's election to certain other real estate) and subject to certain obligations. CATCHWORDS: SUCCESSION – FAMILY PROVISION AND MAINTENANCE – Family Provision Act 1982 ss7, 9 – de facto widow with young children – adequate provision for proper maintenance – appellate review of the jurisdictional question – principles on which relief granted – circumstances to be considered – form of order to provide widow with flexibility in housing and also provide capital for children when adult – SUCCESSION – wills, probate and administration – the construction of a will – charges on property of deceased – how burden of charges to be borne – APPEAL AND NEW TRIAL – principle for appellant intervention in decision concerning jurisdiction under Family Provision Act 1982 LEGISLATION CITED: Conveyancing Act 1919
Family Provision Act 1982
Law of Property Act 1925 (UK)
Locke King’s Act
Statute of Wills 1540
Succession Act 2006
Succession Amendment (Family Provision) Act 2008
Trustee Act 1925CATEGORY: Principal judgment CASES CITED: Barclays Bank Ltd v Gillett [1950] Ch 102
Clifford v Mayr [2009] NSWSC 16
Countess of Bective v Federal Commissioner of Taxation (1932) 47 CLR 417
Foley v Ellis [2008] NSWCA 288
In Re Francis; Francis v Francis [1905] 2 Ch 295
Golosky v Golosky [1993] NSWCA 111; (NSWCA, 5 October 1993, unreported)
House v The King (1936) 55 CLR 499
Langley v Langley [1974] 1 NSWLR 46
Luciano v Rosenblum (1985) 2 NSWLR 65
Marshall v Carruthers [2002] NSWCA 47
O'Loughlin v O'Loughlin [2003] NSWCA 99
Re Butler [1980] Qd R 601
Re Marcuola-Bel Estate; Marcuola-Bel v Thi Ly Tran [2005] NSWSC 1182
Singer v Berghouse (1994) 181 CLR 201
Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191
Warren v Coombes (1979) 142 CLR 531
White v Barron (1980) 144 CLR 431TEXTS CITED: Fisher & Lightwood’s Law of Mortgage, 2nd Aus ed (2005) LexisNexis Butterworths PARTIES: Sondra Louise Clifford (Appellant)
Peter Mayr (First Respondent)
Joseph Donnelly (Second Respondent)FILE NUMBER(S): CA 40133/09 COUNSEL: M Willmott SC; RD Wilson (Appellant)
E Gramelis (Respondents)SOLICITORS: Teece Hodgson & Ward, Sydney (Appellant)
NC Coombes & Co, Marrickville (Respondents)LOWER COURT JURISDICTION: Supreme Court - Equity Division LOWER COURT FILE NUMBER(S): 4084/07 LOWER COURT JUDICIAL OFFICER: McLaughlin AsJ LOWER COURT DATE OF DECISION: 4 February 2009 LOWER COURT MEDIUM NEUTRAL CITATION: Clifford v Mayr and Anor [2009] NSWSC 16
CA 40133/09
SC 4084/0710 FEBRUARY 2010CAMPBELL JA
YOUNG JA
HANDLEY AJA
SONDRA LOUISE CLIFFORD v PETER MAYR & ANOR
Judgment
1 CAMPBELL JA:…
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- AGLC
- Clifford v Mayr [2010] NSWCA 6
- Case
- [2010] NSWCA 6
- Decision Date
CaseChat Overview and Summary
The case of *Clifford v Mayr* concerned an appeal to the Court of Appeal of New South Wales regarding a family provision claim. The appellant, the de facto widow of the deceased, sought adequate provision for her proper maintenance, education, and advancement in life, as did her young children. The primary judge had made an order for provision, but the appellant sought to vary this order on appeal.
The central legal issues before the Court of Appeal were whether the primary judge had erred in their assessment of adequate provision and whether the court had jurisdiction to make the specific form of order sought by the appellant. The appeal also involved consideration of the principles governing appellate intervention in decisions concerning jurisdiction under the *Family Provision Act 1982* (NSW).
The Court of Appeal reasoned that the primary judge's order, while granting some provision, did not adequately address the appellant's need for flexibility in housing and the future capital needs of the children. Applying principles of family provision law, the court considered the circumstances of the parties, including the appellant's role as a de facto spouse and caregiver, and the need to provide for the children's eventual independence. The court also addressed the construction of the will and the burden of charges on the deceased's property in the context of making provision.
Ultimately, the appeal was allowed, and the decision below was set aside. The Court of Appeal made a new order providing additional provision for the appellant in the form of a specific devise of the family home. This devise was subject to a charge for an indexed capital sum for each child, with the option for the appellant to transfer this charge to other real estate, and subject to certain other obligations.
The central legal issues before the Court of Appeal were whether the primary judge had erred in their assessment of adequate provision and whether the court had jurisdiction to make the specific form of order sought by the appellant. The appeal also involved consideration of the principles governing appellate intervention in decisions concerning jurisdiction under the *Family Provision Act 1982* (NSW).
The Court of Appeal reasoned that the primary judge's order, while granting some provision, did not adequately address the appellant's need for flexibility in housing and the future capital needs of the children. Applying principles of family provision law, the court considered the circumstances of the parties, including the appellant's role as a de facto spouse and caregiver, and the need to provide for the children's eventual independence. The court also addressed the construction of the will and the burden of charges on the deceased's property in the context of making provision.
Ultimately, the appeal was allowed, and the decision below was set aside. The Court of Appeal made a new order providing additional provision for the appellant in the form of a specific devise of the family home. This devise was subject to a charge for an indexed capital sum for each child, with the option for the appellant to transfer this charge to other real estate, and subject to certain other obligations.
Orders
Orders of the court
Appeal allowed. Decision below set aside. Order made for additional provision for the Appellant in nature of specific devise of the family home, subject to a charge for an indexed capital sum for each child, (on terms that the charge may be transferred at Appellant's election to certain other real estate) and subject to certain obligations.
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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