Court of Appeal
Supreme Court
New South Wales
- Summary available
- Amendment notes
Medium Neutral Citation: Rodny v Weisbord [2024] NSWCA 183 Hearing dates: 4 July 2024 Date of orders: 30 July 2024 Decision date: 30 July 2024 Before: Ward P at [1];
Stern JA at [10];
Basten AJA at [14]Decision: (1) Allow the appeals in matter 2015/324966 (Joel Weisbord) and in matter 2015/324977 (Alexander Weisbord) and in each matter set aside order 2 entered on 15 December 2023.
(2) In place of those orders, in each matter order that the plaintiff be paid an amount of $700,000 from the estate of Rose Rodny (deceased).
(3) In matter 2015/324982 (Jeannette Weisbord) refuse the executor leave to appeal from the refusal of the primary judge to award indemnity costs.
(4) Order that the respondents’ costs in this Court, assessed on the ordinary basis, be paid from the estate.
(5) Order that the appellant’s costs in this Court, assessed on an indemnity basis, be paid from the estate.
Catchwords: STATUTORY INTERPRETATION – literal meaning gives way to contextual and purposive approach – powers of court – “at the time the order is made” – Succession Act 2006 (NSW), s 59(2)
SUCCESSION – family provision – evidence – whether primary judge erred in failing to require the claimants to provide updating evidence –– whether Succession Act 2006 (NSW), s 59(2), required claimants to file updating evidence – evidence was over five years old – judge subsequently accepted updated valuation of the estate – impact of delay on assessment of provision
SUCCESSION – family provision – claim by grandchildren for provision from deceased’s estate –weight to be given to deceased’s testamentary intentions – intentions expressed in unexecuted will – passage of 16 years – evidence of applicants’ financial circumstances and needs lacking currency
COSTS – requirement for leave to appeal – offer of compromise before first trial – order sought for indemnity costs – failure to challenge costs order on prior appeal – offer contained no real compromise
Legislation Cited: Civil Procedure Act 2005 (NSW), Pt 6
Succession Act 2006 (NSW), Pt 3.2, ss 57, 59, 60
Supreme Court Act 1970 (NSW), s 101
Uniform Civil Procedure Rules 2005, r 36.16(3A)
Cases Cited: Baker v Baker [2024] NSWSC 559
Blendell v Blendell; Blendell v Blendell [2020] NSWCA 154
Bohen v Mitchelmore [2024] NSWSC 171
Bowditch v NSW Trustee and Guardian [2012] NSWSC 275
Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392
Langdon v Carnival PLC [2024] NSWCA 168
Leach v The Nominal Defendant (QBE Insurance (Australia) Ltd) (No 2) [2014] NSWCA 391
Rodny v Weisbord [2020] NSWCA 22
Sreckovic v Sreckovic [2018] NSWSC 1597
Steinmetz v Shannon (2019) 99 NSWLR 687; [2019] NSWCA 114
Weisbord v Rodny [2018] NSWSC 1866
Weisbord v Rodny [2020] HCASL 191
Weisbord v Rodny (No2) [2019] NSWSC 739
Category: Principal judgment Parties: Laurence Rodny (Appellant)
Joel Weisbord (First Respondent)
Alexander Weisbord (Second Respondent)
Jeannette Weisbord (Third Respondent)Representation: Counsel:
L Ellison SC / O…
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- AGLC
- Rodny v Weisbord [2024] NSWCA 183
- Case
- [2024] NSWCA 183
- Decision Date
CaseChat Overview and Summary
The Court was required to determine whether the primary judge erred in failing to require the claimants to provide updated evidence, particularly given that some of the evidence was over five years old and the deceased's unexecuted will was 16 years old. A further issue was the weight to be given to the deceased's testamentary intentions, as expressed in the unexecuted will, in the context of a significant passage of time and a lack of currency in evidence regarding the applicants' financial circumstances and needs. The Court also considered whether the Succession Act 2006 (NSW), s 59(2), mandated the filing of updating evidence.
The Court allowed the appeals by Joel Weisbord and Alexander Weisbord, setting aside the primary judge's order of 15 December 2023 and substituting an order that each plaintiff be paid $700,000 from the estate. The Court reasoned that while the primary judge had accepted an updated valuation of the estate, the delay in the proceedings and the age of the evidence had impacted the assessment of provision. The Court refused the executor leave to appeal the refusal of indemnity costs. The respondents' costs in the Court of Appeal were ordered to be paid from the estate on the ordinary basis, while the appellant's costs were ordered to be paid from the estate on an indemnity basis.
Orders
Orders of the court
(1) Allow the appeals in matter 2015/324966 (Joel Weisbord) and in matter 2015/324977 (Alexander Weisbord) and in each matter set aside order 2 entered on 15 December 2023.
(2) In place of those orders, in each matter order that the plaintiff be paid an amount of $700,000 from the estate of Rose Rodny (deceased).
(3) In matter 2015/324982 (Jeannette Weisbord) refuse the executor leave to appeal from the refusal of the primary judge to award indemnity costs.
(4) Order that the respondents’ costs in this Court, assessed on the ordinary basis, be paid from the estate.
(5) Order that the appellant’s costs in this Court, assessed on an indemnity basis, be paid from the estate.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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