Curtis v Curtis

Case [2024] NSWCA 136


Court of Appeal


Supreme Court


New South Wales

  • Summary available
Medium Neutral Citation: Curtis v Curtis [2024] NSWCA 136
Hearing dates: 8 May 2024
Decision date: 05 June 2024
Before: Leeming JA at [1];
Mitchelmore JA at [146];
Basten AJA at [147]
Decision:

1. Appeal allowed.

2. Set aside the orders made on 28 September 2023, and in lieu thereof, order that the summons be dismissed.

3. Order that the respondents pay the appellant’s costs of the appeal and the proceedings below.

4. Grant the respondents a certificate pursuant to the Suitors’ Fund Act 1951 (NSW) in respect of the costs of the appeal.

Catchwords:

SUCCESSION - family provision - claim by grandchildren - whether primary judge erred in finding dependency - whether primary judge erred in finding factors warranting orders for family provision - whether failure in fact finding process in not addressing key documents or central submissions - whether retrial necessary

Legislation Cited:

Family Provision Act 1982 (NSW)

Succession Act 2006 (NSW), ss 41, 57, 59, 60, Sch 1

Suitors’ Fund Act 1951 (NSW)

Cases Cited:

Alexander v Jansson [2010] NSWCA 176

Bezer v Bassan [2019] NSWCA 50; (2019) 87 MVR 447

Bouttell v Rapisarda [2014] NSWSC 1192

Bowditch v NSW Trustee and Guardian [2012] NSWSC 275

Bradley v Matloob [2015] NSWCA 239

Camden v McKenzie [2008] 1 Qd R 39; [2007] QCA 136

Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392

Chisak v Presot [2022] NSWCA 100

Churton v Christian (1988) 13 NSWLR 241; [1988] NSWCA 23

Estate of Awad [2023] NSWSC 765

Hay v Aynsley [2013] NSWSC 1689

Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11

Lee v Lee (2019) 266 CLR 129; [2019] HCA 28

Lodin v Lodin [2017] NSWCA 327

Mifsud v Campbell (1991) 21 NSWLR 725

Mitchell v Cullingral Pty Ltd [2012] NSWCA 389

Morrison v Carruthers [2010] NSWSC 430

New South Wales v Hunt (2014) 86 NSWLR 226; [2014] NSWCA 47

Nguyen v Tran [2018] NSWCA 215; (2018) 86 MVR 16

Re Fulop deceased; Fulop v Public Trustee; Bide v Public Trustee (1987) 8 NSWLR 679

Shymko v Lach [2022] NSWSC 1096

Spata v Tumino (2018) 95 NSWLR 706; [2018] NSWCA 17

Straughen-Nicholson v Straughen [2019] NSWSC 1389

Sun v Chapman [2022] NSWCA 132

Yee v Yee [2017] NSWCA 305

Zaya v Damirdjian [2022] NSWCA 203

Texts Cited:

New South Wales Law Reform Commission, Report on the Testator’s Family Maintenance and Guardianship of Infants Act 1916 (June 1977)

Category:Principal judgment
Parties: Peter Arthur Curtis (Appellant)
Blake Johnathon Curtis (First Respondent)
Brock Ryan Curtis (Second Respondent)
Representation:

Counsel:
C Simpson (Appellant)
L Clarke (Respondents)

Solicitors:
Somerville Laundry Lomax Solicitors (Appellant)
Robbins Watson Solicitors (Respondents)
File Number(s): 2023/315725
Publication restriction: Nil
 Decision under appeal 
Court or tribunal:
Supreme Court of New South Wales
Jurisdiction:
Equity Division
Citation:

[2023] NSWSC 1164

Date of Decision:
28 September 2023
Before:
Elkaim AJ
File Number(s):
2022/313246

HEADNOTE

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AGLC
Curtis v Curtis [2024] NSWCA 136
Case
[2024] NSWCA 136
Decision Date

CaseChat Overview and Summary

The appeal in *Curtis v Curtis* concerned a family provision claim brought by grandchildren against the estate of their deceased grandfather. The primary judge had made orders for family provision in favour of the grandchildren. The executor of the estate appealed these orders to the Court of Appeal of New South Wales.

The central legal issues before the Court of Appeal were whether the primary judge had erred in finding that the grandchildren were dependent on the deceased and whether the primary judge had erred in finding that there were factors warranting the making of family provision orders. The appellant also argued that there was a failure in the fact-finding process, specifically in not addressing key documents and central submissions, and that a retrial might be necessary.

The Court of Appeal found that the primary judge had erred in their assessment of dependency and the overall assessment of the factors warranting provision. The court determined that the evidence did not support a finding of sufficient dependency to justify the orders made. Consequently, the appeal was allowed, the primary judge's orders were set aside, and the grandchildren's summons was dismissed. The respondents were ordered to pay the appellant's costs of the appeal and the proceedings below, with a certificate granted under the Suitors’ Fund Act 1951 (NSW) for the costs of the appeal.

Orders

Orders of the court

1. Appeal allowed.

2. Set aside the orders made on 28 September 2023, and in lieu thereof, order that the summons be dismissed.

3. Order that the respondents pay the appellant’s costs of the appeal and the proceedings below.

4. Grant the respondents a certificate pursuant to the Suitors’ Fund Act 1951 (NSW) in respect of the costs of the appeal.

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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