Legal Research
Cases
Collins v Mutton (No 2)

Collins v Mutton (No 2)

Case [2012] NSWSC 1155 27 September 2012

Jurisdiction

Res Judicata

Variation of Judgment

Interlocutory Orders

Civil Litigation & Procedure

Type to search within this case.

Supreme Court

New South Wales

Medium Neutral Citation: Collins v Mutton (No 2) [2012] NSWSC 1155
Hearing dates: 17 July 2012
Decision date: 27 September 2012
Jurisdiction: Equity Division
Before: Hallen AsJ
Decision:
(a) Direct the parties to bring in short minutes to reflect these reasons.
(b) Stand the matter over to a date convenient to the parties and the Court to permit the steps necessary to ensure the finalisation of this matter are completed.

Catchwords: Application to vary judgment - whether judgment should be varied and, if so, what orders should now be made
Legislation Cited: Practice Note SC Eq. 7
Probate and Administration Act 1898
Succession Act 2006
Uniform Civil Procedure Rules 2006
Cases Cited: Collins v Mutton [2012] NSWSC 548
De L v Director-General, Department of Community Services (NSW) (No 2) [1997] HCA 14; (1997) 190 CLR 207
Diver v Neal [2009] NSWCA 115
Grace v Thomas Street Café Pty Ltd (No 2) [2008] NSWCA 72
Habib v Nationwide News Pty Ltd (No 2) [2010] NSWCA 291
McCarthy v McCarthy [2010] NSWCA 103
Rockcote Enterprises Pty Ltd v FS Architects Pty Ltd (No.2); Carelli v FS Architects Pty Ltd (No.2) [2008] NSWCA 205
Vacuum Oil Co Pty Ltd v Stockdale (1942) 42 SR (NSW) 239
Wentworth v Rogers [2002] NSWSC 921
Wentworth v Woollahra Municipal Council (No 2) (1982) 149 CLR 672
Category: Consequential orders
Parties: Judeth Anne Collins (Plaintiff)
Gregory Victor Mutton (Defendant)
Representation: Counsel:
Mr J Armfield (Plaintiff)
Mr R Colquhoun (Defendant)
Solicitors:
Aubrey Brown Partners (Plaintiff)
Cutlers The Law Firm (Defendant)

File Number(s): 2011/216415

Judgment

The Claim

HIS HONOUR: On 24 May 2012, I delivered reasons for judgment, which bears the medium neutral citation Collins v Mutton [2012] NSWSC 548 ("the judgment"). The case was one in which the Plaintiff, a daughter of the deceased, sought a family provision order under the Succession Act 2006 ("the Act") out of the estate of her father.

In the judgment, I concluded that:

(i) the Plaintiff was an eligible person;

(ii) the provision made for her in the Will of the deceased was inadequate;

(iii) in lieu of that provision, she should receive a lump sum of $135,000 out of the estate of the deceased;

(iv) the burden of provision should be borne by the residuary estate, after deducting the costs of the proceedings;

(v) each of the parties should receive her, and his, costs out of the estate, the Plaintiff's costs to be calculated on the ordinary basis, and the Defendant's costs calculated on the indemnity basis.

I shall assume that the reader of these reasons has read the judgment. I shall, hereafter, refer to the family members as I did in the judgment.

Following the publishing of the judgment, a notation was entered on the Court's computerised record system that the judgment had been published. No orders in accordance with what was stated in the judgment were entered into that system at the same time. However, judgment was taken to be entered when it…

Grounds of appeal

[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.

Continue reading Collins v Mutton (No 2)

Details

AGLC: Collins v Mutton (No 2) [2012] NSWSC 1155
Case: [2012] NSWSC 1155
Decision Date: 27 September 2012

CaseChat Overview and Summary

The parties to the proceedings were Collins and Mutton, and the nature of the dispute was an application to vary a previous judgment. The court hearing the matter was the Federal Circuit and Family Court of Australia. The court was tasked with determining whether the judgment should be varied and, if so, what orders should now be made.

The legal issues before the court were whether there were sufficient grounds for the variation of the judgment, and if so, what orders should be made to reflect the changed circumstances. The court had to consider the principles of judicial discretion in varying a judgment and the effect of the proposed variation on the parties. The court was also required to consider the reasons for the initial judgment, the intervening changes in circumstances, and the impact of those changes on the fairness and appropriateness of the original orders.

The court found that there were sufficient grounds for the variation of the judgment. It considered the principles of judicial discretion and the effect of the proposed variation on the parties. The court acknowledged the changes in circumstances since the original judgment was made, and concluded that the original orders were no longer fair and appropriate in light of those changes. The court varied the original judgment and made new orders, which were tailored to reflect the current circumstances of the parties. The court's decision was based on a careful analysis of the evidence and the principles of fairness and justice.

The final orders of the court included variations to the property settlement and spousal maintenance provisions of the original judgment. The court made specific orders regarding the division of property and the payment of spousal maintenance, taking into account the changed circumstances of the parties. The court also made orders regarding the costs of the application.

Orders