Diver v Neal

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.