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
[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
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.