1. Dismiss the notice of motion dated 26 March 2009 and filed 27 March 2009 in the appeal. 2. Order that the appellant, the applicant on the notice of motion, pay the costs of the respondents of and in connection with the notice of motion.
CATCHWORDS:
PROCEDURE - judgments and orders - amending, varying and setting aside orders – motion for additional order – motion dismissed. - SUCCESSION - family provision and maintenance - failure by testator to make sufficient provision for applicant – order made to give additional provision – order sought to reopen to seek order under Family Provision Act 1982 (NSW) s 15 to create discretionary trust to prevent access by creditors of the recipient to the legacy – reopening not permitted. - Family Provision Act 1982 (NSW) s 15.
1 THE COURT: Judgment in this matter was delivered on 18 March 2009 ([2009] NSWCA 54). By notice of motion filed on 27 March 2009 supported by affidavit the appellant seeks an additional order to those made on 18 March. The order now sought is an order said to be supported by the Family Provision Act 1982 (NSW), s 15 to the effect that the full sum of $80,000 (being the original legacy of $20,000 to the appellant left by the testator and the additional provision of $60,000 referred to in order 2(a) made on 18 March 2009) be placed in a discretionary trust to be formed so that the $80,000 be kept out of the hands of creditors of…
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.
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Details
AGLC
Diver v Neal [2009] NSWCA 115
Case
[2009] NSWCA 115
Decision Date
CaseChat Overview and Summary
The appeal concerned a motion brought by the applicant, Ms Diver, seeking to reopen an earlier Family Provision Act 1982 (NSW) order made by the Supreme Court of New South Wales. The original order had provided additional provision from the estate of the deceased to Ms Diver. The respondents were the executors of the estate.
The primary legal issue before the Court of Appeal was whether the court had the power to reopen the final Family Provision Act order to make a further order under section 15 of the Act. Section 15 permits the court to make orders for the provision of property to a beneficiary in a manner that protects it from creditors, such as by creating a discretionary trust. Ms Diver sought to invoke this provision to shield her legacy from potential claims by her creditors.
The Court of Appeal held that once a final order had been made under the Family Provision Act, the court's jurisdiction to make further orders in relation to that provision was exhausted, absent specific statutory provision or exceptional circumstances not present here. The court reasoned that the finality of judgments and orders is a fundamental principle of the administration of justice. While section 15 allows for protective orders to be made at the time of the initial provision, it does not grant a general power to reopen concluded proceedings to vary or add to existing orders based on subsequent circumstances or a change in the applicant's desired protective measures.
The notice of motion was dismissed, and Ms Diver was ordered to pay the costs of the respondents in relation to the motion.
Orders
Orders of the court
1. Dismiss the notice of motion dated 26 March 2009 and filed 27 March 2009 in the appeal. 2. Order that the appellant, the applicant on the notice of motion, pay the costs of the respondents of and in connection with the notice of motion.