Tobias JA at [1] Campbell JA at [56] Young JA at [87]
Decision:
Appeal dismissed with costs. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:
WILLS AND ESTATES - family provision claim - application out of time - financial resources and needs of claimant - whether the trial judge could have regard to the fact appellant's claim would have been weaker had it been brought and determined within the prescribed period, whether the trial judge could have regard to the detriment the appellant's siblings would have suffered had there been redistribution - Family Provision Act 1982 (NSW), ss 9, 16
Peter Robert Durham Bruce Albert Durham Winifred Joyce Durham Paul Anthony Durham
Representation
- Counsel:
Counsel: A: M T Bridged 3R: J E Armfield
- Solicitors:
Solicitors: A: Williams Woolf & Zuur, Dee Why 3R: Burridge & Legg, Forestville
File number(s):
CA 2009/289633-003
Decision Under Appeal
- Court / Tribunal:
- Before:
Ball J
- Date of Decision:
05 May 2010
- Citation:
Peter Robert Durham v Bruce Albert Durham & Ors [2010] NSWSC 389
- Court File Number(s)
SC 2009/3635
Publication Restriction:
HEADNOTE
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
Durham v Durham [2011] NSWCA 62
Case
[2011] NSWCA 62
Decision Date
CaseChat Overview and Summary
In *Durham v Durham*, the New South Wales Court of Appeal considered an appeal concerning a family provision claim brought under the *Family Provision Act 1982* (NSW). The appellant, a beneficiary under the deceased's will, sought provision from the estate, but the application was made outside the statutory time limit. The primary dispute revolved around the deceased's estate and the appellant's entitlement to further provision, with the appellant challenging the trial judge's approach to the timing of the claim and the potential detriment to other beneficiaries.
The central legal issues before the Court of Appeal were whether the trial judge erred in considering the appellant's claim as weaker due to its late lodgement and whether it was permissible for the judge to take into account the potential detriment to the appellant's siblings had a redistribution of the estate occurred within the prescribed period. These issues required the court to interpret sections 9 and 16 of the *Family Provision Act 1982* (NSW) in the context of applications made out of time.
The Court of Appeal affirmed the trial judge's reasoning, holding that it was open to the judge to have regard to the fact that the appellant's claim would have been weaker had it been brought and determined within the prescribed period. Furthermore, the court found that the trial judge was entitled to consider the detriment the appellant's siblings would have suffered had there been a redistribution of the estate. The appeal was ultimately dismissed with costs.
Orders
Orders of the court
Appeal dismissed with costs.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]