Robinson v Robinson

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.