(1) Declare that each respondent is liable to contribute equally to property designated as notional estate for the satisfaction of the provision ordered by the Court in favour of the appellant.
(2) Order that the respondents are to pay the appellant's costs in this Court and at first instance.
(3) In the event that any of the amounts required to be paid under order (3) made by this Court on 6 February 2014 and under order (2) hereof remain unpaid within 28 days of:
(a) in the case of order (3) made on 6 February 2014, the date of this judgment; or
(b) in the case of order (2) hereof, the date of agreement or assessment of such costs;
the parties have liberty to apply to the judge in charge of the Family Provision List in the Equity Division for further orders, including an order designating any asset or assets of the respondents as notional property for the purpose of satisfying any liability of the respondents for provision, interest or costs resulting from the judgments of this Court.
(4) Grant the respondents a certificate under the Suitors' Fund Act 1951 with respect to the costs of the appeal.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:
SUCCESSION - family provision and maintenance - distribution of estate - satisfaction of order for provision from notional estate
SUCCESSION - family provision and maintenance - costs - whether order for costs to be made from notional estate - Succession Act 2006, s 99(1)
PROCEDURE - costs - general rule costs follow the event - exceptions to general rule - conduct of parties - no disentitling conduct
Beoco Ltd v Alfa Laval Co Ltd [1993] EWCA Civ 22; [1995] QB 137 W & K Holdings (NSW) Pty Ltd v Laureen Margaret Mayo (No 2) [2013] NSWSC 1581
Category:
Costs
Parties:
Brian Phillips (Appellant) Gaye James (First Respondent) Gary Phillips (Second Respondent)
Representation:
Counsel: L Ellison SC; D Liebhold (Appellant) P W Bates (Respondents) Solicitors: D Stanefska & Associates (Appellant) Needs Chan & Monahan (Respondents)
[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.
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AGLC
Phillips v James (No 2) [2014] NSWCA 135
Case
[2014] NSWCA 135
Decision Date
CaseChat Overview and Summary
In *Phillips v James (No 2)*, the New South Wales Court of Appeal considered an appeal concerning the distribution of a deceased's estate and the satisfaction of an order for provision made in favour of the appellant. The dispute involved the extent to which certain property, designated as "notional estate," should be used to satisfy the provision ordered for the appellant, and also the question of costs.
The primary legal issues before the Court of Appeal were whether the respondents were liable to contribute equally to the notional estate for the satisfaction of the provision ordered for the appellant, and whether the respondents should be ordered to pay the appellant's costs in both the Court of Appeal and at first instance. The Court also had to consider the implications of the *Succession Act 2006* (NSW), particularly section 99(1), in relation to the designation and use of notional estate for the satisfaction of orders.
The Court of Appeal reasoned that the respondents were indeed liable to contribute equally to the notional estate for the satisfaction of the provision ordered for the appellant. Applying the general rule that costs follow the event, the Court ordered that the respondents pay the appellant's costs in the Court of Appeal and at first instance, finding no disentitling conduct on the part of the appellant. The Court further made orders regarding the liberty to apply for further orders, including the designation of assets as notional property, in the event of unpaid amounts relating to the provision and costs. Finally, the Court granted the respondents a certificate under the *Suitors' Fund Act 1951* (NSW) in respect of the costs of the appeal.
Orders
Orders of the court
(1) Declare that each respondent is liable to contribute equally to property designated as notional estate for the satisfaction of the provision ordered by the Court in favour of the appellant.
(2) Order that the respondents are to pay the appellant's costs in this Court and at first instance.
(3) In the event that any of the amounts required to be paid under order (3) made by this Court on 6 February 2014 and under order (2) hereof remain unpaid within 28 days of:
(a) in the case of order (3) made on 6 February 2014, the date of this judgment; or
(b) in the case of order (2) hereof, the date of agreement or assessment of such costs;
the parties have liberty to apply to the judge in charge of the Family Provision List in the Equity Division for further orders, including an order designating any asset or assets of the respondents as notional property for the purpose of satisfying any liability of the respondents for provision, interest or costs resulting from the judgments of this Court.
(4) Grant the respondents a certificate under the Suitors' Fund Act 1951 with respect to the costs of the appeal.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]