Phillips v James (No 2)

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.