Favre v Baldwin

[2024] NSWCA 228

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Favre v Baldwin [2024] NSWCA 228

Hearing dates:

3 September 2024

Date of orders:

3 September 2024

Decision date:

03 September 2024

Before:

Bell CJ, Leeming JA, McHugh JA

Decision:

Application for leave to appeal refused with costs.

Catchwords:

SUCCESSION — Mandatory interlocutory injunction Succession Act 2006 (NSW), s 62 — Leave to appeal refused

Legislation Cited:

Succession Act 2006 (NSW) s 62

Category:

Procedural rulings

Parties:

Nerida Jean Favre (Applicant)
Florencia Baldwin (Respondent)

Representation:

Counsel:

J Brown and H Rogers (Applicant)
C Birtles and C Harris (Respondent)

Solicitors:

Turnbull Hill Lawyers (Applicant)
Mullane & Lindsay (Respondent)

File Number(s):

2024/238768

Publication restriction:

N/A

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity

Citation:

[2024] NSWSC 731

Date of Decision:

17 June 2024

Before:

Kunc J

File Number(s):

2023/328560

JUDGMENT – EX TEMPORE

1. THE COURT: This is an application for leave to appeal from a decision of Kunc J delivered on 17 June 2024: Baldwin v Favre [2024] NSWSC 731. His Honour on that occasion granted orders including a mandatory interlocutory injunction. His orders were subsequently stayed pending the hearing of this application for leave to appeal.

2. Although finding that no case was made out for interim provision under s 62 of the Succession Act 2006 (NSW) (Succession Act), his Honour nevertheless granted, as I have said, what was in effect a mandatory interlocutory injunction permitting the plaintiff in a family provision application to occupy pro tem a property forming part of the estate. The application for leave to appeal seeks to challenge his Honour's orders.

3. At the time of the application before the primary judge, his Honour was informed that the matter was ready for hearing. Since that time some further interlocutory steps have taken place. When the application for leave to appeal came on for hearing this morning, the parties indicated that the matter could be ready and would be ready for hearing, with necessary updating material, within two to three weeks on an estimate of two days plus.

4. The Court is in a position to supply a judge for hearing of the matter in the week commencing Tuesday 8 October 2024. In these circumstances, there was broad agreement that there was little utility in granting leave to appeal.

5. In reaching this view, the Court is not to be taken to endorse the primary judge's reasoning which led to the granting of a mandatory interlocutory injunction in circumstances where no case was made out for interim provision under the Succession Act. It was far from clear what the juridical basis was for the relief granted. Issues of balance of convenience only arise after that proper juridical basis is established.

6. The orders of the Court will be as follows:

1. Application for leave to appeal refused with costs;

2. Order that the applicant's costs be paid out of the estate on the indemnity basis;

3. List the hearing before McHugh JA on 8 October for three days (noting that if there is an issue about whether the matter starts on the 8th or the 9th the parties should first confer and then have liberty to communicate directly with McHugh JA’s chambers without needing to list the matter for any confirmation);

4. Make the usual order as provided for in annexure A to the practice note with the following qualification: the White Book in the current application for leave to appeal will stand as the court book, with any supplemental material to follow with pagination continuing on from the current White Book with necessary amendments to the index. Otherwise the usual orders for hearing are to apply;

5. Liberty to apply on two days' notice to McHugh JA’s chambers;

6. Vacate the listing before the registrar on 12 September; and

7. Direct that updating affidavits be filed and served by 17 September.

**********