Nudd v Mannix

[2010] NSWCA 127

New South Wales

Court of Appeal

CITATION:	Nudd v Mannix [2010] NSWCA 127
HEARING DATE(S):	3 May 2010
JUDGMENT DATE:	1 June 2010
JUDGMENT OF:	Hodgson JA
DECISION:	Matter stood over to a date before Hodgson JA in about four weeks’ time.
CATCHWORDS:	SUCCESSION – Family provision and maintenance – Enforcement of orders – Estate distributed by executor prior to order being made – Estate retained probably insufficient for costs – Beneficiary seeks remedies – What remedy available – What order should be made.
LEGISLATION CITED:	Family Provision Act 1982 ss 15, 24 and 28 Uniform Civil Procedure Rules 36.16
CATEGORY:	Consequential orders
CASES CITED:	De L v Director-General, New South Wales Department of Community Services [No 2] [1997] HCA 14; (1997) 190 CLR 207 Re Diplock [1948] Ch 465 Ministry of Health v Simpson [1951] AC 251 Nudd v Mannix [2009] NSWCA 327
PARTIES:	Rita NUDD (applicant/appellant) Stephen MANNIX (respondent)
FILE NUMBER(S):	CA 2009/298084
COUNSEL:	S J BURCHETT (applicant/appellant) W J WILCHER (respondent)
SOLICITORS:	Shanahan Tudhope Lawyers (applicant/appellant) Marsdens Law Group (respondent)
LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	2808/07; 3282/07
LOWER COURT JUDICIAL OFFICER:	Mclaughlin AsJ
LOWER COURT DATE OF DECISION:	21 November 2008
LOWER COURT MEDIUM NEUTRAL CITATION:	Mannix and Nudd v Mannix [2008] NSWSC 1228

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2009/298084

HODGSON JA

1 JUNE 2010

Rita NUDD v Stephen MANNIX

Judgment

: On 15 October 2009, Handley AJA delivered the judgment of the Court of Appeal in this case: [2009] NSWCA 327. The written judgment proposed the following orders:

(1) Appeal allowed with costs.

(2) Orders of Associate Justice McLaughlin of 21 November and 9 December 2008 set aside.

(3) In lieu thereof substitute an order that the appellant receive a legacy of $120,000 from the estate of the deceased.

(4) Subject to any payment under the orders that have been set aside interest on the appellant’s legacy at legacy rates is to run from 28 days after the date of these orders.

(5) The burden of the additional legacy of $60,000 for the appellant is to be borne by the six legacies of $10,000 in favour of the grandchildren of the deceased.

(6) Order that the costs of the plaintiff of the trial on a party and party basis, not exceeding $60,000, be paid out of the estate of the deceased.

(7) Order that the defendant’s costs of the trial and the appeal on an indemnity basis be paid out of the estate of the deceased, except to the extent that such costs are recovered under the Suitor’s Fund Act.

(8) The Court notes and accepts the undertaking given by the solicitors for the appellant on 4 August 2009 recorded in the reasons of this Court.

(9) The respondent is to have a certificate under the Suitor’s Fund Act.

2 At the request of the appellant made on that day, those orders were either not made or were recalled; and they have not since been made.

3 On 24 March 2010, the…