Meagher JA at [1], Ward JA at [2], Gleeson JA at [229]
Decision:
1. Refuse the appellant’s application for leave to file a further amended notice of appeal to include an additional ground 3. 2. Dismiss with costs the appellant’s notice of motion dated 2 December 2019 seeking leave to adduce additional evidence on appeal. 3. Dismiss the appeal with costs. 4. Extend time for the filing of the cross-appeal but dismiss the cross-appeal on the basis that it is not necessary to determine and order the cross-respondent to pay the costs of the cross-appeal. 5. Order that the costs the subject of orders 3 and 4 may be deducted from the appellant’s share ($180,000) of the proceeds of sale of the property referred to in these reasons as the Kincumber property when that property is sold in accordance with the consent orders made by the primary judge on 17 April 2018.
Catchwords:
SUCCESSION — Family provision — Appeals — appeal from orders made in chambers approving s 95 Succession Act releases — whether primary judge failed to consider each of the matters listed in s 95(4) Succession Act — appeal dismissed — application for leave to amend grounds of appeal denied — cross-appeal — change of position/ estoppel defence to restitution of moneys paid pursuant to impugned orders
[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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Details
AGLC
Robinson v Robinson [2020] NSWCA 4
Case
[2020] NSWCA 4
Decision Date
CaseChat Overview and Summary
The appeal concerned orders made in chambers approving releases under section 95 of the *Succession Act*. The appellant, Robinson, sought to appeal these orders, while the respondent, Robinson, sought to uphold them and also cross-appealed. The Court of Appeal, comprising Meagher, Ward and Gleeson JJA, considered the appellant's application for leave to amend their grounds of appeal and an application to adduce further evidence, as well as the substantive appeal and a cross-appeal.
The primary legal issues before the Court of Appeal were whether the primary judge had failed to consider each of the matters listed in section 95(4) of the *Succession Act* when approving the releases, and whether a change of position or estoppel defence was available to the respondent in relation to the restitution of moneys paid pursuant to the impugned orders. The appellant also sought to introduce a new ground of appeal concerning the primary judge's consideration of the section 95(4) matters.
The Court of Appeal refused the appellant's application for leave to amend their notice of appeal, finding that the proposed additional ground of appeal was unlikely to succeed. The application to adduce further evidence was also dismissed. On the substantive appeal, the Court found no error in the primary judge's decision and dismissed the appeal. The Court extended time for the filing of the cross-appeal but ultimately dismissed it, deeming it unnecessary to determine.
The Court ordered that the costs of the appeal and the cross-appeal be deducted from the appellant's share of the proceeds from the sale of the Kincumber property, as previously ordered by the primary judge.
Orders
Orders of the court
1. Refuse the appellant’s application for leave to file a further amended notice of appeal to include an additional ground 3.
2. Dismiss with costs the appellant’s notice of motion dated 2 December 2019 seeking leave to adduce additional evidence on appeal.
3. Dismiss the appeal with costs.
4. Extend time for the filing of the cross-appeal but dismiss the cross-appeal on the basis that it is not necessary to determine and order the cross-respondent to pay the costs of the cross-appeal.
5. Order that the costs the subject of orders 3 and 4 may be deducted from the appellant’s share ($180,000) of the proceeds of sale of the property referred to in these reasons as the Kincumber property when that property is sold in accordance with the consent orders made by the primary judge on 17 April 2018.