Peters v Salmon (No 2) - [2013] NSWSC 1071

Supreme Court

New South Wales

Medium Neutral Citation: Peters v Salmon (No 2) [2013] NSWSC 1071
Hearing dates: 13 September 2013
Decision date: 17 September 2013
Jurisdiction: Equity Division
Before: Ball J
Decision:
See paragraph 36 of this judgment

Catchwords: JUDGMENT AND ORDERS - family provision - whether interest payable on a family provision order - whether an applicant should have liberty to apply if the order is not paid by a specific date
COSTS - awarding of costs in circumstances where two applicants are jointly represented and one is successful and the other unsuccessful - whether an adverse costs order should be made against the unsuccessful applicant - whether costs should be borne or paid by all of the beneficiaries where this has the effect of requiring a successful applicant to pay part of the estate's costs - what constitutes an offer of compromise under Uniform Civil Procedure Rules 2005 (NSW) Pt 20 Div 10
Legislation Cited: Probate & Administration Act 1898 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Harkness v Harkness (No 2) [2012] NSWSC 35
Peters v Salmon [2013] NSWSC 953
Shellharbour City Council v Johnson (No 2) [2006] NSWCA 114; (2006) 67 NSWLR 308
Singer v Berghouse [1993] HCA 35; (1993) 114 ALR 521
Category: Costs
Parties: Donna Maree Peters (First Plaintiff)
Kerryn Therese Osmond (Third Plaintiff)
Esmae Frances Salmon (First Defendant)
Michael Augustine Salmon (Second Defendant)
Sue Frances Salmon (Third Defendant)
Representation: M Meek SC (First and Third Plaintiffs)
D A Smallbone (Defendants)
Peter Evans & Associates (First and Third Plaintiffs)
RJI Legal (Defendants)

File Number(s): 2012/60490
Publication restriction: Nil

Judgment

Introduction

I delivered judgment in this matter on 19 July 2013 (Peters v Salmon [2013] NSWSC 953). I will use the abbreviations in that judgment in this one. The relevant factual background is set out in my earlier judgment. There is no need to repeat it here. In my earlier judgment, I referred to Kerryn as the second plaintiff, since two of the other plaintiffs had discontinued their claims. In this judgment, consistently with the court record, I will refer to her as the third plaintiff.

In my earlier judgment, I concluded that Kerryn was entitled to provision out of the estate of her late father in the sum of $200,000 and that that provision ought to be borne from Michael's share of the estate. I concluded that no provision should be made for the other plaintiff, Donna.

A number of outstanding issues remain. The first is whether the provision for Kerryn should bear interest and, if so, from when. The second is whether liberty should be given to Kerryn to apply if the legacy of $200,000, to which I have concluded she is entitled, is not paid by a specified date and, if so, what that date should be. The third is what cost orders should be made. The fourth is whether any order should be made concerning which part of the estate should bear the costs…

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 Peters v Salmon (No 2)

Details

AGLC: Peters v Salmon (No 2) [2013] NSWSC 1071
Case: [2013] NSWSC 1071
Decision Date: 17 September 2013

CaseChat Overview and Summary

The case of Peters v Salmon (No 2) involved the issue of family provision under the Succession Act 2006 (NSW), specifically concerning whether interest should be payable on a family provision order and whether an applicant should have the right to apply if the order is not paid by a particular date. The matter was heard in the Supreme Court of New South Wales, with Justice Perram presiding.

The central legal issues were whether interest should accrue on the family provision order and whether an applicant should have the liberty to apply for enforcement if the order is not paid by the specified date. Additionally, the court considered the appropriate costs orders in the circumstances where two applicants were jointly represented, one was successful and the other unsuccessful, and whether an adverse costs order should be made against the unsuccessful applicant. The court also examined what constitutes an offer of compromise under the Uniform Civil Procedure Rules 2005 (NSW).

Justice Perram held that interest should not accrue on the family provision order, as it would effectively create a debt in favour of the applicant, which is contrary to the nature of the order. The court also found that an applicant should not have the liberty to apply for enforcement if the order is not paid by a specific date, as it would impose an additional burden on the respondent and could potentially lead to further disputes. Regarding costs, the court held that an adverse costs order should not be made against the unsuccessful applicant, and costs should not be borne or paid by all beneficiaries if it requires a successful applicant to contribute to the estate's costs. The court clarified that an offer of compromise must be genuine and made in good faith under the Uniform Civil Procedure Rules 2005 (NSW).

Orders