Nudd v Mannix

Case [2009] NSWCA 327

New South Wales


Court of Appeal


CITATION: NUDD v MANNIX [2009] NSWCA 327
HEARING DATE(S): 04/08/2009
 
JUDGMENT DATE: 
15 October 2009
JUDGMENT OF: McColl JA at 1; Macfarlan JA at 2; Handley AJA at 3
DECISION: (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.
CATCHWORDS: COSTS - power to fix cap. - FAMILY PROVISION - claim by de facto widow – need for secure independent accommodation – Crisp order for flexible life estate - question to be litigated at trial - unconditional provision made for widow.
LEGISLATION CITED: Family Provision Act 1982 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Suitor’s Fund Act 1951(NSW)
CATEGORY: Principal judgment
CASES CITED: Milillo v Konnecke [2009] NSWCA 109
PARTIES: Rita Nudd - Appellant
Stephen Mannix - Respondent
FILE NUMBER(S): CA 40047/2009
COUNSEL: S Burchett - Appellant
L Ellison SC and P McEniery - Respondent
SOLICITORS: Shanahan Tudhope Lawyers Sydney - Appellant
Marsdens Law Group (Campbelltown) - Respondent
LOWER COURT JURISDICTION: Supreme Court
LOWER COURT FILE NUMBER(S): 3282/2007
LOWER COURT JUDICIAL OFFICER: McLaughlin AsJ
LOWER COURT DATE OF DECISION: 21/11/2008
LOWER COURT MEDIUM NEUTRAL CITATION: [2008] NSWSC 1228




                          CA 40047/09

                          MCCOLL JA
                          MACFARLAN JA
                          HANDLEY AJA

                          15 October 2009

NUDD v MANNIX

CATCHWORDS




      COSTS - power to fix cap

      FAMILY PROVISION - claim by de facto widow – need for secure independent accommodation – Crisp order for flexible life estate - question to be litigated at trial - unconditional provision made for widow.

HEADNOTE




      The deceased left an estate of $415,182 to his sons and grandchildren and made no provision for his de facto widow after a relationship of at least 19 years. She brought an application under the Family Provision Act and the Trial Judge found that she had been left without adequate provision for her proper maintenance. She was in…

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AGLC
Nudd v Mannix [2009] NSWCA 327
Case
[2009] NSWCA 327
Decision Date

CaseChat Overview and Summary

The appeal concerned a dispute between the de facto widow of the deceased (the appellant) and the executor of the deceased's estate (the respondent). The appellant had made a claim against the estate for provision, and the primary judge had made orders for provision to the appellant. The appeal was heard by McColl and Macfarlan JJA and Handley AJA.

The legal issues before the court included the appropriate level of provision to be made for the de facto widow from the estate, particularly in relation to her need for secure independent accommodation, and the extent to which an order for a flexible life estate was appropriate. The court also considered the power to fix a cap on costs.

The court allowed the appeal, setting aside the orders of the Associate Justice. In lieu of those orders, the court substituted an order that the appellant receive a legacy of $120,000 from the estate, with interest to run from 28 days after the date of the court's orders. The additional $60,000 to the appellant's legacy was to be borne by the legacies to the deceased's grandchildren. The court also made orders regarding the costs of the trial and the appeal, with the defendant's costs on an indemnity basis to be paid out of the estate, subject to recovery under the Suitor's Fund Act. The court noted and accepted an undertaking given by the appellant's solicitors and ordered that the respondent be granted a certificate under the Suitor's Fund Act.

Orders

Orders of the court

(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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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