Davy v Black No 2

[2012] NSWSC 361

Supreme Court

New South Wales

Medium Neutral Citation:

Davy v Black No 2 [2012] NSWSC 361

Hearing dates:

12/04/12

Decision date:

12 April 2012

Jurisdiction:

Equity Division

Before:

Associate Justice Macready

Decision:

I decline to vary the judgment.

I dismiss the motion with costs.

I decline to make the costs orders on the indemnity basis and the costs will be on the ordinary basis.

I order that interest be paid on the legacy if it is not paid within 14 days of today's date and from that date at the rate provided for under the Probate Administration Act.

Catchwords:

Application to vary earlier judgment within UCPR 36.16(3A). No power to review judgment.

Legislation Cited:

Family Provision Act 1982

Cases Cited:

De L v Director-General, NSW Department of Community Services (No 2) (1997) 190 CLR 207 at 215
Dillon v Gosford County Council 184 LGERA 179 at para 37

Category:

Consequential orders

Parties:

Helen Margaret Davy (plaintiff)
Jeanette Louise Black (first defendant)
Noel James Black (second defendant)

Representation:

Mr R Colquhoun (plaintiff)
Ms L Wilson (defendants)
Stacks Forster (plaintiff)
Lumleys (defendants)

File Number(s):

2010/00230721

judgment

1. HIS HONOUR: This is the hearing of the defendant's motion filed on 8 December 2011 seeking to vary a judgment which I gave on 16 November 2011.

1. The proceedings reported as Davy v Black [2011] NSWSC 1416 were a claim for provision under the Succession Act 2006 by a daughter of the deceased. The deceased was survived by two daughters and, apart from dealing with a horse "Excelltastic", he died intestate. His estate was not large and the case really concerned his notional estate in the order of $3.3 million.

1. Judgment pursuant to my decision was entered on the Court's computer system on 24 November 2011 and the motion, as I have said, was filed on 8 December 2011, within 14 days of the entry of judgment.

1. The application thus fell within UCPR 36.16(3A) which is in the following terms:

(3A) If notice of motion for the setting aside or variation of a judgment or order is filed within 14 days after the judgment or order is entered, the court may determine the matter, and (if appropriate) set aside or vary the judgment or order under subrule (1), as if the judgment or order had not been entered.

1. The application was not made under UCPR 36.17 (the slip rule).

1. Before turning to the power to make the order sought, it is necessary to set out the true nature of the application. I will assume, for the purposes of what follows, that the reader has read my principal judgment.

1. The claim is that I should now review the amount of the legacy which I ordered in favour of the plaintiff of $975,000.

1. The grounds for asking me to so vary it were as follows:

1. If the determination of the size of the legacy was based upon the amount of the notional estate then the Court acted on a wrong assumption as to the size of the notional estate.

2. If the determination of the size of the legacy was based upon a comparison of the parties' net worth, the defendant's net worth stated in para 73 of the judgment is incorrect.

3. The Court's considerations in paras 89 to 103 of the judgment does not equate to (or perhaps justify) the additional legacy of $475,000.

1. Before turning to the illogicality of dealing with these matters as separate items I will expand on the grounds.

Amount of notional estate

1. In my judgment at paras 82 and 88 I took into account what I described as a "large amount" of notional estate.

1. At pars 12 to 13 I identified notional estate as between 3,274,296 and 3,304,296. For the purposes of calculation, I will adopt $3.3 million. From that in para 14 I deducted part, being the Origin Equity shares at $906,859 and this left 2,393,141. Earlier I had identified debts of $958,501 which were to be met from that money, leaving an amount of 1,434,640.

1. It was submitted that in giving a legacy of $975,000 to the plaintiff out of that sum, she received 68% of the notional estate and the defendant 32%. Thus it is said that if I did use a larger figure the judgment would be irregular. The only suggestion that I might have done so is that in para 88 where I referred to it as a "relatively large amount".

Net worth of the parties

1. I dealt with the net worth of the defendant at paras 69 to 73.

1. It was suggested that by working back from the transfer to them of notional estate, allowing for debts, and payment to the plaintiff of $500,000, their net worth would be 1,894,141. This figure is then compared with the figure I found in para 73 of slightly in excess of $3 million.

1. What is to be noted about this approach is:

(a) The matters I put in para 69, namely, that:

"Jeanette has not put forward her financial situation for consideration by the Court. In these circumstances, the Court can proceed on the assumption that she does not want the Court to take it into account.

(b) That the plaintiff's net worth, even after payment of $500,000 to her before the hearing was only $376,500. There is still a substantial difference between this figure and just under $2 million for Jeanette, even if that approach of determining her assets is appropriate.

Paragraphs 89-103

1. These concern my assessment of need after the payment of $500,000 for the plaintiff. It is apparent that I accepted:

1. A need to discharge the mortgage of $388,000.

2. A need for braces of $7,000.

3. Something for contingencies.

4. Something for education of the children.

1. A large number of the claims I rejected and I rejected the claimed quantum of the amounts for education and contingencies.

1. I awarded, in addition to the $500,000, an additional amount of $475,000 which gave a modest amount above the amount needed to discharge the mortgage.

1. It is plain that one does not make an assessment based solely on the size of the notional estate. Similarly, one does not make an assessment based solely on a net worth comparison. It is a holistic judgment, taking these and other factors into account, one of which of course is that the defendant does not wish the Court to take account of her financial situation.

1. To return to the question of power. In De L v Director-General, NSW Department of Community Services (No 2) (1997) 190 CLR 207 at 215 the majority said the following:

"The Court may do so if it is convinced that, in its earlier consideration of the point, it has proceeded 'on a misapprehension as to the facts or the law', where 'there is some matter calling for review' or where 'the interests of justice so require'. It has been said repeatedly that a heavy burden is case upon the applicant for reopening to show that such an exceptional course is required 'without fault on his part', ie without the attribution of neglect or default to the party seeking reopening. By such expressions of the power to reopen final orders, courts seek to recognise competing objectives of the law. On the one hand, there is the principle of finality of litigation which reinforces the respect that should be shown to orders, final on their face, addressed to the world at large and upon which conduct may be ordered reliant upon their binding authority. On the other hand, courts recognise that accidents and oversights can sometimes occur which, unrepaired, will occasion an injustice."

1. That of course dealt with the matter at the High Court level and recently this was reaffirmed in the New south Wales Court of Appeal in Dillon v Gosford County Council 184 LGERA 179 at para 37 in these terms:

"No error of law was identified in relation to his Honour's approach to the exercise of that discretionary power. He referred, correctly, to the principles identified in Smith v NSW Bar Association (1992) 176 CLR 256 at 265. Those principles were referred to with approval in De L v Director-General, NSW Department of Community Services (No 2) (1997) 190 CLR 207 at 215, albeit in relation to an application to reopen a judgment in that Court; different principles may apply to a trial court, but no significant departure was identified in the present case. In the latter case, the joint judgment (of Toohey, Gaudron, McHugh, Gummow and Kirby JJ) dealt with the power of the High court to reopen its own judgments or orders, noting that it was not in doubt."

1. In this case, there has been identified one misapprehension on my part as to the net worth of the defendant on the supposition made to determine that point. That plays no relevant part, having regard to the defendant's approach to the case in terms of not putting the true state of their assets before the Court. The difference in comparative net wealth is still substantial.

1. In my view, there is not any other matter which calls for review in the light of the principles applicable to the situation here, which is an application to the trial judge rather than appeal.

1. I therefore decline to vary the judgment. It is simply a matter for the defendant now to decide whether they wish to appeal to the Court of Appeal against my judgment. Even if I had power and did proceed to such a review, having looked at the matter and had the benefit of argument from the parties, I would have made no change to my judgment.

1. I dismiss the motion with costs.

1. I have heard argument as to whether or not there should be orders for costs on an indemnity basis.

1. The application was started immediately after judgment, within 14 days of entry. Admittedly, there has been a delay in dealing with it. For what reason I know not. However, I do not see that the application has been made improperly. It took some argument and careful consideration before determining the application.

1. Accordingly, I decline to make the orders on the indemnity basis and the costs will be on the ordinary basis.

1. I do note, however, that in the judgment I did not make an order for interest on the legacy and that I reserved liberty to apply.

1. I will enquire as to whether there is any application now for any interest on the legacy. Such an application is now made.

1. I think it is appropriate to award interest. I do not think it is appropriate to order it from a date before today and I will allow time for the executors to gather the money to pay the legacy.

1. I will order that the interest be paid on the legacy, if it is not paid within 14 days of today's date, on and from that date at the rate provided for under the Probate Administration Act 1898.

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Decision last updated: 18 April 2012