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

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.

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.

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.

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.

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

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.

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

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…

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 Davy v Black No 2

Details

AGLC: Davy v Black No 2 [2012] NSWSC 361
Case: [2012] NSWSC 361
Decision Date: 12 April 2012

CaseChat Overview and Summary

In the matter of Davy v Black No 2, the plaintiff sought to have the court vary an earlier judgment under UCPR 36.16(3A). The dispute centred around an application to alter an earlier judgment in relation to a legacy payment, with the primary concern being the calculation of interest on the legacy amount. The case was heard in the Supreme Court of New South Wales.

The court was required to decide whether it had the power to review the earlier judgment in light of the application under UCPR 36.16(3A). The key legal issue was whether the court could vary the earlier judgment in relation to the interest calculation on the legacy payment. The court examined whether the earlier judgment was subject to review under the UCPR and if there were any circumstances that warranted a variation of the judgment.

In its reasoning, the court found that it did not have the power to review the earlier judgment. The court held that the application under UCPR 36.16(3A) was not a mechanism to review the merits of the earlier judgment but rather to address procedural errors or matters that were not previously considered. The court determined that the application did not fall within the scope of permissible grounds for review under the UCPR. As a result, the application to vary the earlier judgment was dismissed.

The court ordered that if the legacy was not paid within 14 days of the date of the judgment, interest would be paid on the legacy from that date at the rate provided for under the Probate Administration Act 1898. The court's decision emphasised the importance of adhering to the correct procedures when seeking to vary a judgment and underscored the limited circumstances in which such variations are permissible.

Orders

Orders of the court

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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

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.

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