(1) Confirm the order as to costs made by the Master; (2) Order that the costs of the appellant and the respondent of the appeal be paid out of the notional estate of the deceased.
CATCHWORDS:
Application under Family Provision Act - Master ordered legacy of $250,000 - on appeal by executrix/beneficiary, legacy reduced to $60,000 - applicant entitled to trial costs out of notional estate - no basis for arbitrary ceiling on amount of costs - whether appellant's costs should be paid by respondent or come out of the notional estate - discussion of cases - approach as to trial costs extended to appeal - costs out of notional estate. D
Stacks The Law Firm - Appellant Kelly & Agerholm - Respondent
LOWER COURTJURISDICTION:
Supreme Court
LOWER COURT FILE NUMBER(S):
SC 4910/00
LOWER COURT JUDICIAL OFFICER :
Master McLaughlin
-
CA 40666/03 SC 4910/00
HANDLEY JA GILES JA McCOLL JA
Wednesday 3 November 2004
JVANCICH v KENNEDY (NO 2)
Judgment
1 HANDLEY JA: I agree with Giles JA.
2 GILES JA: The appellant appealed from the Master’s order under the Family Provision Act 1982 that the respondent receive a legacy of $250,000 and her costs out of the notional estate of the deceased. It was held that the Master had erred in the exercise of his discretion. The discretion was re-exercised and an order was made for a legacy of $60,000. We were informed at the hearing that offers of settlement had passed between the parties. Costs of the proceedings before the Master and on appeal were reserved, to be dealt with on written submissions. None of the written submissions adverted to the offers of settlement. They must therefore have no bearing on the costs orders to be made. The deceased died intestate, and the appellant acquired all his…
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 Jvancich v Kennedy (No 2)
Sign in free to access the full text
Details
AGLC
Jvancich v Kennedy (No 2) [2004] NSWCA 397
Case
[2004] NSWCA 397
Decision Date
CaseChat Overview and Summary
The appeal concerned an application for provision from the estate of the deceased under the *Family Provision Act*. The applicant, Jvancich, had been awarded a legacy of $250,000 by the Master. However, on appeal by the executrix and beneficiary, Kennedy, this legacy was reduced to $60,000. The primary dispute on this further appeal related to the costs of the proceedings.
The court was required to determine whether the applicant was entitled to have their trial costs paid out of the notional estate of the deceased, and whether there was any basis for imposing an arbitrary ceiling on the amount of those costs. Furthermore, the court had to consider whether the appellant's costs of the appeal should be paid by the respondent or also come out of the notional estate.
The court reasoned that the Master's order as to costs was appropriate and that there was no justification for an arbitrary limit on the applicant's trial costs. Applying established principles regarding costs in family provision claims, the court extended this approach to the costs of the appeal, concluding that it was just and equitable for both the appellant's and the respondent's costs of the appeal to be paid out of the notional estate.
The court ordered that the Master's order as to costs be confirmed and that the costs of both the appellant and the respondent in relation to the appeal be paid out of the notional estate of the deceased.
Orders
Orders of the court
(1) Confirm the order as to costs made by the Master; (2) Order that the costs of the appellant and the respondent of the appeal be paid out of the notional estate of the deceased.