Rodny v Weisbord

[2024] NSWCA 183

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 Bellhouse-Smith (Appellant)
V Culkoff (First to Third Respondents)

Solicitors:
Norbert Lipton & Co (Appellant)
Kramer & Kramer (First to Third Respondents)

File Number(s):

2023/00465451

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Supreme Court

Jurisdiction:

Equity

Citation:

[2021] NSWSC 458; [2022] NSWSC 1726; [2023] NSWSC 1581

Date of Decision:

30 April 2021; 16 December 2022; 15 December 2023

Before:

Robb J

File Number(s):

2015/324966; 2015/324977; 2015/324982

HEADNOTE

[This headnote is not to be read as part of the judgment]

The testator, Rose Rodny, died in 2014. She was survived by two offspring, Laurence Rodny and Jeannette Weisbord. Ms Weisbord had two sons Joel and Alexander Weisbord and two daughters. The testator had executed a will in 1997 naming her son as her executor and disposing of three residential properties, one to each of her offspring and the third to her four grandchildren. The property left to her grandchildren was sold in 2003. Her solicitor held a copy of a will prepared in 2008 by which her son’s property was left for her grandchildren. Her son obtained a grant of probate of the 1997 will.

In 2015 and 2016 Ms Weisbord and her two sons, Joel and Alexander Weisbord, (the claimants) commenced proceedings in the Equity Division seeking a grant of probate for an unexecuted 2008 will and, in the alternative, provision out of the estate. A trial took place in October 2017. In December 2018 the primary judge, Robb J, granted probate with respect to the unexecuted 2008 will and did not need to resolve the provision applications. He did not make contingent findings against the possibility of a successful appeal. In early 2020, the Court of Appeal overturned the probate judgment and remitted the matter to the Equity Division to determine the provision applications. The claimants made an unsuccessful application to the High Court for special leave to appeal.

In April 2021 the primary judge rejected the executor’s application for the claimants to file updating evidence as to their circumstances, despite the significant period that had passed since the claimants had filed their evidence in 2016 and been cross-examined at the trial in 2017. In December 2022, the trial judge held that an order for provision from the estate should be made in favour of Joel and Alexander Weisbord (placing significant weight on the testamentary intentions found within the unexecuted 2008 will), but dismissed Ms Weisbord’s claim. The amount was not determined. Subsequently, the trial judge accepted evidence of an updated valuation for one of the properties in the estate, and in December 2023 made orders granting provision of $1,750,000 each to Joel and Alexander Weisbord and dismissing the executor’s claim for indemnity costs relating to Ms Weisbord’s failed claim.

On 8 March 2024 the executor filed a notice of appeal raising the following issues, namely whether the primary judge erred in:

1. rejecting the executor’s application for updating evidence;

2. granting provision to Joel and Alexander; and

3. dismissing the executor’s claim for indemnity costs of the first trial.

The Court (Ward P, Stern JA and Basten AJA) allowing the appeal in part, held:

As to (i) (application for updating evidence)

1. The direction in the Succession Act 2006, s 59(2), that the court is to have regard to “the facts known to the Court at the time the order is made” does not impose an obligation on the court or the parties to update evidence up until the delivery of judgment. It reflects the statutory purpose to allow reference to events after the testator’s death, but without speculation as to the future: [64]-[66] (Basten AJA); (Ward P at [2], Stern JA at [11] agreeing).

2. Given the lack of up to date information as to the claimants’ current needs, the value of the properties, and the costs incurred by the estate, to be fair to both parties the judge ought to have acceded to the executor’s application: [3], [6] (Ward P); [11], [13] (Stern JA); [67], [76], [98] (Basten AJA).

As to (ii) (grant of provision to grandsons)

1. The primary judge erred in placing dispositive weight upon the testamentary intentions of the deceased identified in the unexecuted 2008 will, given the significant time that had passed after 2008 and her death in 2014, the requirements of s 60(2) of the Succession Act and the approach to provision claims made by grandchildren: [83], [88]-[92], [96], [99] (Basten AJA); (Ward P at [6], Stern JA at [10] agreeing).

Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392; Bowditch v NSW Trustee and Guardian [2012] NSWSC 275; Bohen v Mitchelmore [2024] NSWSC 171, applied.

1. The deficiencies in the evidence must be given appropriate weight in determining the amount of provision to be ordered. With little current information about their financial resources or needs as to such matters as accommodation, the Court should reduce the amount of provision granted by the primary judge: [78], [94], [108], [113] (Basten AJA); (Ward P at [6], Stern JA at [13] agreeing).

2. The testator’s intention to benefit the grandchildren, the fact that she continued to provide support during her lifetime when the plaintiffs were in their twenties, and their disabilities, which it may be inferred where ongoing, warranted an order of $700,000 for each: [103]-[117] (Basten AJA); (Ward P at [7], Stern JA at [12] agreeing).

As to (iii) (refusing leave to appeal on costs)

1. The only order sought by the executor in relation to Ms Weisbord was to overturn the judge’s refusal to award indemnity costs of the first trial. That being an appeal as to costs only, required leave: Supreme Court Act 1970 (NSW), s 101(1)(c). The offer on which the application was based was not a true “compromise”. Having failed to challenge the costs order on the appeal, the executor could not now challenge that order: [125], [126]-[128] (Basten AJA).

Langdon v Carnival PLC [2024] NSWCA 168; Leach v The Nominal Defendant (QBE Insurance (Australia) Ltd) (No 2) [2014] NSWCA 391 applied.

JUDGMENT

1. WARD P: I agree with Basten AJA, for the reasons that his Honour gives, that the appeal should be allowed. I also agree with the orders his Honour has proposed. I would simply make the following additional comments.

2. While I agree that (in the absence of an order for the provision of updating affidavits when the matter was remitted to the primary judge) there was no obligation on the part of the respondents to file updating affidavits, it is nevertheless incumbent on claimants for family provision to make full and frank disclosure to the Court of their personal and financial circumstances so that the Court is in a position to make orders having regard to the facts as known at that time (see Baker v Baker [2024] NSWSC 559 at [22], citing Hallen J in Sreckovic v Sreckovic [2018] NSWSC 1597 at [228]).

3. The failure to do so (indeed in this case the deliberate forensic decision of the respondents not to do so coupled with their active resistance to the making of an order for updating affidavits) carries with it the very real risk that the Court will not then have all the necessary information to make the assessments required in such a case (both as to the adequacy of provision by the deceased for the proper maintenance, education or advancement in life of the claimant or claimants; and as to what would be appropriate provision in any particular case).

4. The problem in the present case was exacerbated by the apparent tendency of Counsel for the respondents to make submissions from the Bar table and in written submissions as to the respondents’ circumstances in lieu of evidence as to those matters. In particular, I refer to references both before the primary judge and in written submissions in this Court (ultimately withdrawn) as to the attempted suicide or suicidal ideation of one of the respondents, of which there was no evidence; and which Counsel for the respondents, when pressed, accepted were factually incorrect (but which appear to have led the primary judge to refer to that claimant having “suicidal depression”). Such an approach is far from satisfactory.

5. The decision by the respondents not to make full and frank disclosures of their circumstances as at the time of the remittal of the matter to the primary judge also placed them at risk of their application for provision being dismissed outright.

6. While, for the reasons given by Basten AJA, this Court on rehearing the matter on appeal has been in a position to form a view as to the appropriate provision to be made, the material on which this conclusion was reached was nevertheless in my opinion unsatisfactory. Absence of knowledge of the circumstances of each of the respondents at the relevant time makes it difficult to make a reliable assessment as to what their respective needs might be. So, for example, one cannot assume that the accommodation needs of a claimant living outside Australia (as I understand from the submissions made for the respondents may have been the case when the matter came back before the primary judge) would be the same as those the claimant had when a number of years earlier he was living in Sydney (whether or not his health issues, unemployment status or the like had remained unchanged). Nor can an inference be drawn, from the absence of evidence as to the respondents’ up to date circumstances, that their position had not changed (whether for better or worse) in the years between the probate judgment and the time that the primary judge came to rule on their family provision claim. For that reason, I could not support an order for provision in anywhere near the amount that the primary judge arrived at, particularly where his Honour in my opinion gave undue weight to the testamentary intentions discerned from the unexecuted will.

7. That said, I am persuaded, taking into account the evidence at the first hearing at first instance as to the respondents’ psychological and physical issues, their relationship with the deceased, the deceased’s previously expressed testamentary intentions, the size of the overall estate and the lack of competing claims put forward by other beneficiaries, and the other matters to which Basten AJA has referred, that the appropriate provision for the respondents (on balance) is the sum identified by Basten AJA. I also agree with his Honour’s conclusions on the issue of costs.

8. Finally, while the primary judge explained his decision not to deal with the family provision claim at the time of the probate judgment (on the basis that it was not feasible or convenient to consider the outcome of the family provision claims in circumstances where the deceased’s testamentary intention could fall within such a wide range of possibilities), in hindsight that decision has proved to be most unfortunate (not least because of the time and expense that has subsequently been incurred in relation to the matter, including not one but now two sets of appellate proceedings).

9. The procedural chronology has been referred to by Basten AJA and need not here be restated. Suffice it to note that, by the time the primary judge came to rule on the question relating to updating evidence (in March 2021), at least four years had elapsed since the affidavits on which the respondents relied to establish their personal and financial circumstances had been filed. The delay occasioned by the decision not to address the family provision claims at the time of the probate judgment makes it difficult to understand the refusal by the primary judge when the matter came back before him in 2021 to accede to the appellant’s application for directions to be made as to the filing of updating evidence. Indeed, his Honour himself noted in the final judgment that the evidence as to the respondents’ personal and financial circumstances was by then (some six and a half years later) “somewhat remote” (see at [62]), recognising that there was no specific evidence as to the respondents’ accommodation needs. In those circumstances, the suggestion by the primary judge in his 2021 judgment that some practical absurdity would arise where updating evidence might be required some time after the hearing at first instance cannot be accepted.

10. STERN JA: I agree with the orders proposed by Basten AJA and with his Honour’s reasons for proposing those orders.

11. Without in any way derogating from that agreement, I would add that, for my part, a significant consideration in determining the amount to be ordered by way of family provision for Joel and Alexander Weisbord (whom I will refer to as “the plaintiffs”) is the uncertainty that arose from their failure to put any updating evidence before the Court as to their circumstances, or needs, since their affidavits were prepared in 2016 and early 2017 and they were cross-examined in 2017. This necessarily led to uncertainty as to the ongoing significance of the matters identified in that evidence. As Basten AJA explains, this is of particular significance given the proper construction of s 59(2) of the Succession Act 2006 (NSW).

12. I agree with Basten AJA that assumptions could properly be made as to the likely continuance of the plaintiffs’ physical and intellectual needs and that the plaintiffs would likely have continued to have some difficulties in obtaining stable employment. Those assumptions, together with the other matters referred to by Basten AJA, support a conclusion that adequate provision was not made by the deceased’s will for the proper maintenance, education or advancement in life of the plaintiffs. In these circumstances, I would reject Mr Rodny’s contention that the plaintiffs’ application for family provision should be dismissed on account of the lack of up to date evidence.

13. The fact remains, however, that there is no current evidence before the Court as to the plaintiffs’ financial resources or financial or accommodation needs. That evidentiary deficiency must be given appropriate weight in determining the amount of provision to be ordered under s 59(2) of the Succession Act. That, together with the other matters identified by Basten AJA, supports the conclusion, with which I agree, that the appropriate course is to order provision for each in an amount of $700,000.

14. BASTEN AJA: On 15 December 2023, the primary judge, Robb J, made orders in favour of Joel and Alexander Weisbord for provision from the estate of their grandmother, Rose Rodny, who died in August 2014. The appellant, Laurence Rodny, who is the testator’s son and executor, seeks to have those orders set aside. (As they have played different roles in the various proceedings, it will be convenient, after outlining the background, to refer to Mr Rodny as “the executor” and Joel and Alexander Weisbord as “the plaintiffs”.)

15. The original proceedings, commenced in November 2015, included a claim for provision by Jeannette Weisbord, the testator’s daughter. That claim was dismissed at the time the claims of the two grandsons were upheld. Ms Weisbord has not sought to challenge the dismissal of her claim but is the third respondent named in the appeal because there is a challenge to the costs order made by the primary judge in dismissing her claim.

16. Although there is a single notice of appeal, there are in fact three separate appeals dealing with separate proceedings, heard together, commenced by each of the respondents. That has consequences for the appeal involving Ms Weisbord, which concerns costs only and requires leave.

17. That the proceedings remain unresolved, just short of the tenth anniversary of the testator’s death, is a matter for regret. It is not this Court’s function to apportion blame for the delays that have occurred, but it will be necessary to recount a significant part of the procedural history in order to dispose of the appeal. The fundamental complaint underlying the various grounds of appeal was that, in assessing the provision to be made for the plaintiffs in 2023, the primary judge relied upon affidavit evidence prepared in 2016 and oral evidence heard in October 2017. The executor submitted that the primary judge was wrong to proceed without more recent evidence as to their needs, and, in the absence of such evidence, his assessment could not stand.

The probate proceedings

18. The last will of the testator was executed in 1997. Although in November 2015 Ms Weisbord had filed a summons seeking additional provision from the estate, it was not until some nine months later that she filed a separate proceeding seeking to set aside the grant of probate in common form with respect to the 1997 will and seeking, in its place, that an unexecuted draft will prepared in August 2008 be admitted to probate. In August 2016, the latter proceeding was amended to include Joel and Alexander Weisbord as co-plaintiffs.

19. In 1997, the testator owned two properties in Balfour Road, Bellevue Hill and a property at Carramar Avenue, Carramar. Her other major asset was a shareholding in the company, Karod Investments Pty Ltd (Karod), which had owned the business run by Mrs Rodny and her husband prior to his death in 1989. Under the 1997 will, 77 Balfour Road was devised to her daughter, and 102 Balfour Road to her son. The shares in Karod were given to her son, and the Carramar property was to be held on trust for her grandchildren who survived her and attained the age of 25 years. The residue of the estate was left to her son. In 2003, the Carramar property was sold. As a result, the testator’s intention for that property to go to her grandchildren was frustrated.

18. In August 2008, the testator’s solicitor prepared a fresh will which, for reasons which were not entirely clear, was not signed by her. Relevantly for present purposes, the unexecuted 2008 will would have left 102 Balfour Road on trust for her four grandchildren, in equal shares as tenants in common at 18 years of age.

19. It was clearly appropriate for the primary judge to determine the probate proceedings first. In the event that he found, as he did, that the unexecuted 2008 will should be admitted to probate, the family provision claims fell away. The judge could have, but did not, deal with the family provision claims on a contingent basis, against the possibility of a successful appeal by the executor of the 1997 will. The judgment disposed of the probate proceeding by orders 1 and 2 and further ordered:^[1]

“4   Consequently upon orders in terms of pars 1 and 2 being made, each of the plaintiffs’ claims for family provision orders is to be dismissed.”

1. Weisbord v Rodny [2018] NSWSC 1866 (“Weisbord (No 1)”)

22. Further submissions were entertained in respect of costs and a second judgment dealing with those issues was delivered on 19 June 2019. ^[2] Orders were made in each of the proceedings in the Equity Division and entered on 2 July 2019.

    2. Weisbord v Rodny (No 2) [2019] NSWSC 739 (“Weisbord (No 2)”).

23. Weisbord (No 1) was the subject of an appeal and the orders admitting the unexecuted 2008 will to probate were set aside by this Court on 27 February 2020. ^[3] By a further order made on 16 March 2020, the family provision claims were remitted to the primary judge (or some other judge in the Equity Division). The parties were granted liberty to approach the judge’s associate to list the matters for directions.

    3. Rodny v Weisbord (2020) NSWCA 22 (Meagher JA, White JA (with additional reasons) and McCallum JA agreeing).

Family provision proceedings

24. There was some delay in relisting the matters, primarily, it seems, as a result of a late application for special leave to appeal to the High Court brought by Ms Weisbord and the plaintiffs. On 9 September 2020, the relevant extension of time was refused. ^[4]

    4. Weisbord v Rodny [2020] HCASL 191.

25. The first directions hearing in the Equity Division after the remitter was held on 2 March 2021. The executor sought case management orders that would give all parties an opportunity to serve updating evidence. ^[5] The plaintiffs’ written submissions dated 16 March 2021 dealt with the question of “updating evidence”. The submissions contained two parts. The first stated that the proper construction of s 59 of the Succession Act 2006 (NSW), discussed below, required that orders for family provision be made on the basis of the evidence as at the date judgment was reserved. In the present case, that was 12 April 2018. However, the plaintiffs also submitted that, if the primary judge determined there should be updating evidence, “any such updating should not include a reopening of the case with a further hearing and further cross-examination – particularly given the original hearing took place over 16 days”. ^[6]

    5. Weisbord v Rodny (No 3) [2021] NSWSC 458 (“Weisbord (No 3)”) at [14].

    6. Plaintiff’s submissions on updating evidence, par 10.

26. The second part of the plaintiffs’ written submissions identified further information relevant to each of the claimants. It was said that the information “is provided to merely demonstrate that nothing of any real significance has changed from the Plaintiffs’ perspectives regarding their financial positions and their health issues”. ^[7] However, this was, as the executor submitted somewhat tartly, ^[8] an attempt to provide further factual material without subjecting the plaintiffs to further cross-examination as to their circumstances, or permitting the executor to put on evidence as to the current circumstances of the estate.

    7. Submissions, par 15.

    8. Executor’s submissions in reply, 22 March 2020.

27. The Court heard brief oral submissions on 23 March 2021. On 30 April 2021, the primary judge handed down a further (third) judgment. ^[9] The judge rejected the executor’s application so that the Court would “decide the plaintiffs’ family provision applications on the basis of the evidence that was before the Court when it initially reserved judgment”. ^[10]

    9. See fn 5 above.

    10. Weisbord (No 3) at [18].

28. That conclusion was based on three matters, namely (i) the absence of a reopening application by the executor; ^[11] (ii) the failure of the executor to provide “evidence to the Court as to the general nature of any updating evidence that the [executor] contends should be placed before the Court”; ^[12] and (iii) acceptance of the plaintiffs’ submission as to the construction of s 59(2) of the Succession Act, namely to require that orders be made based on the facts known to the Court at the time judgment was reserved. ^[13] The judge also noted the potential prejudice to the plaintiffs if they were required to attend for a further hearing and cross-examination, given “the psychological difficulties from which they suffer”, in the event the Court made “open-ended case management orders that permitted the [executor] to serve evidence as to events that have occurred after the Court first reserved judgment”. ^[14] Nevertheless, the primary judge did not proceed to determine the family provision claims but rather sought additional submissions as to “whether, and if so in what respects, the reasoning of the Court of Appeal should influence the Court’s determination of the family provision applications”. ^[15]

    11. Ibid at [16].

    12. Ibid at [17].

    13. Ibid at [22].

    14. Ibid at [25].

    15. Ibid at [28].

29. The resolution of the question of updating evidence proceeded on a somewhat informal basis. The initial application appears to have resulted from the executor seeking directions at the hearing on 2 March 2021. (No transcript of that hearing was in the papers before this Court, nor was a copy of the executor’s submissions in support of the application, dated 9 March 2021.) It also seems that there was no notice of motion, and the judge made no orders in his judgment of 30 April 2021.

30. On 25 May 2021 the plaintiffs filed written submissions. Their short answer to the judge’s questions was, unsurprisingly, that the Court of Appeal, having dealt with the issue before it by considering whether the testator’s intention for her last will had directed that intention to a particular document; otherwise the findings as to other matters and as to credibility remained undisturbed. However, the plaintiffs claimed support for the proposition that the draft will which they had propounded in the probate proceedings broadly reflected her testamentary intentions as to the disposition of her property.

31. The executor’s submissions, filed on 8 June 2021, doubted the “influence or relevance … of expressions of testamentary intentions the deceased made some 6 years prior to her death in contemplation of signing a will which was never signed”. ^[16] The plaintiffs filed submissions in reply on 15 June 2021.

    16. Written submissions, 8 June 2021, par 32(b).

32. Judgment in Weisbord v Rodny (No 4) ^[17] was not delivered until 16 December 2022, some 18 months later. The coversheet to the judgment recorded “final written submissions delivered on 15 December 2021”, but that appears to be a mistake: there is no indication, either in the judgment or in the papers before this Court, of any written submissions having been filed after 15 June 2021.

    17. [2022] NSWSC 1726 (“Weisbord (No 4)”).

33. On 30 January 2023 the plaintiffs filed written submissions which attached two appraisals indicating the current value of 102 Balfour Road as in the range of $8m-$9m, and two offers of compromise dated 13 September 2017 and 17 March 2020. The plaintiffs submitted that 80% of a quarter of the property’s value would be between $1.6m-$1.8m and sought indemnity costs. In his response dated 6 February 2023 the executor contended that, having obtained a direction from the Court precluding further evidence, the Court should act consistently with its ruling in Weisbord (No 3) by limiting its consideration to the evidence already before the Court.

34. There was a further directions hearing on 7 February 2023. Two issues were addressed in oral submissions, namely questions as to costs and as to the valuation of 102 Balfour Road. The issues relating to costs may be put to one side. As to the value of 102 Balfour Road, the judge accepted the executor’s submission that if evidence of value were to be obtained, contrary to his general refusal to accept further evidence, the appraisals put forward by the plaintiffs were inadequate and a proper valuation should be obtained. No reasons were given to support that course. Subject to that matter, the judge reserved his judgment.

35. Ten months later, on 15 December 2023, judgment was delivered in Weisbord v Rodny (No 5). ^[18] In recounting the history, the judge stated that, on 24 August 2023, the plaintiffs had provided a valuation report, adopting $10.5m as the current value for 102 Balfour Road, a valuation not challenged by the executor. ^[19] In calculating the provision to be made in favour of the plaintiffs, the judge noted that the value of 102 Balfour Road had been agreed at the time of the original hearing as $5.1 million. The judge concluded:

“62   In all of these circumstances, I will make orders for the provision out of the residue of Mrs Rodny’s estate a lump sum legacy of $1.75 million to each of Joel and Alexander. I consider that to be a fair way to take into account the evidence of the increase in value of No 102. I have not simply multiplied the $1 million tentatively suggested in [171] of Weisbord No 4 by a factor of 2 to reflect the apparent doubling of the value of No 102. That makes an allowance for the fact that Joel and Alexander have not given specific evidence addressed to their accommodation needs. It allows for the fact that the new valuation has not been subject to scrutiny (having regard to the two appraisals that were submitted by the plaintiffs that were below the value adopted by the valuer). It also acknowledges that the evidence that was presented at the original hearing concerning the personal and financial circumstances of Joel and Alexander is now somewhat remote, so that it is fair that some effect should be given to Mr Rodny’s objection to evidence being received of the current value of No 102, in circumstances where he has been denied the opportunity of demonstrating that Joel’s and Alexander’s circumstances have materially changed since 12 April 2018.”

18. [2023] NSWSC 1581.

19. Weisbord (No 5) at [46].

Statutory scheme

36. The issues raised on the appeal concerned the orders for financial provision made in favour of the testator’s grandchildren, Joel and Alexander Weisbord. To identify the relevant matters, it is necessary to have regard to the applicable provisions in Pt 3.2 of the Succession Act and the primary judge’s findings in respect of each matter.

Eligibility

37. Section 59(1) of the Succession Act conditions the making of a family provision order upon the satisfaction of three conditions. The first is that the applicant is an “eligible person”: s 59(1)(a). The primary categories of “eligible persons” identified in s 57 of the Succession Act are spouses, including de facto and former spouses, and children of the deceased, but not later generations. The grandchildren may fall within one or both of two further categories:

57   Eligible persons

(1)   The following are eligible persons who may apply to the Court for a family provision order in respect of the estate of a deceased person—

…

(e)   a person—

(i)   who was, at any particular time, wholly or partly dependent on the deceased person, and

(ii)   who is a grandchild of the deceased person or was, at that particular time or at any other time, a member of the household of which the deceased person was a member,

(f)   a person with whom the deceased person was living in a close personal relationship at the time of the deceased person’s death.

38. The judge made findings as to eligibility in Weisbord (No 4):

“158 I am satisfied for the purposes of s 57(1)(e)(i) of the Succession Act that, for most of their lives while the deceased was alive, both Joel and Alexander were partly dependent on the deceased, who provided to them a substantial level of accommodation and financial and emotional support, for much of the time largely eclipsing the support provided by their parents.

159 I am also satisfied for the purposes of s 57(1)(f) of the Succession Act that both Joel and Alexander were living in a close personal relationship with the deceased at the time of her death.”

39. Ground 3 of the notice of appeal challenged the finding that the plaintiffs were “eligible persons” within the meaning of s 57(1)(e). However, as was noted in oral submissions, there was no challenge to the alternative finding based on par (f). Although ground 3 was neither withdrawn nor amended, the submissions concerning eligibility were not developed in oral argument. There was ample evidence to justify the finding that the grandchildren were eligible persons. It is not necessary to deal further with ground 3.

Factors warranting

40. The second condition, applicable to eligible persons who satisfy one of pars (d), (e) or (f) in s 57, is that “having regard to all the circumstances of the case (whether past or present) there are factors which warrant the making of the application”: s 59(1)(b). This condition, commonly referred to as the need for “factors warranting” was dealt with briefly by the primary judge in Weisbord (No 4):

“160 The evidence clearly satisfies me for the purposes of s 59(1)(b) of the Succession Act that there are factors which warrant the making of the application for further family provision by both Joel and Alexander. I accept that the deceased encouraged both of her grandsons to believe that they would, on her death, receive a share in No 102 Balfour [Road] that would entitle them to a unit so that they would have an independent home. The relationship between the deceased and her grandsons, as appears from the evidence summarised above, was such that they were natural objects of testamentary recognition by the deceased at the time of her death. The gift included by the deceased in the second typewritten draft will in 2008 in favour of her grandchildren speaks eloquently of the truth of the proposition that the deceased herself recognised Joel and Alexander as being objects of testamentary recognition by her. That conclusion is reinforced by the fact that the deceased included a gift in favour of her grandchildren in the December 1997 will that has been admitted to probate that was only ineffective because it has been adeemed as a result of the deceased’s need to sell the property to provide a fund for her living expenses.”

41. Although this finding was challenged by ground 4 of the notice of appeal, that ground was not pressed.

Adequate provision

42. The third requirement in s 59(1) is that “adequate provision” has not been made in favour of the applicant during the life of the testator or by her will. There is a temporal element which gave rise to close consideration on the appeal and which requires reference to further provisions in s 59:

59   When family provision order may be made

(1)   The Court may, on application under Division 1, make a family provision order in relation to the estate of a deceased person, if the Court is satisfied that—

…

(c)   at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person, or by the operation of the intestacy rules in relation to the estate of the deceased person, or both.

(2)   The Court may make such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made.

…

(3)   The Court may make a family provision order in favour of an eligible person in whose favour a family provision order has previously been made in relation to the same estate only if—

(a)   the Court is satisfied that there has been a substantial detrimental change in the eligible person’s circumstances since a family provision order was last made in favour of the person ….

Issues on appeal

43. Subject to one category best described as miscellaneous, the nine grounds of appeal set out in the notice of appeal fell into four categories. The first challenged the refusal of the primary judge to allow updating evidence following the remittal by this Court for the purpose of disposing of the family provision claims. Grounds 1 and 7 read as follows: ^[20]

“1   The trial judge erred on 30 April 2021 (Judgment (No 3), [17], [18]):

(a)   In not ordering Joel and Alexander to file and serve updating evidence of the personal and material circumstances of each (Judgment (No 4), [11], [12], [18], [164], [165]), and

(b) Not granting leave to the appellant to file and serve updating evidence of the nature and value of the estate (Judgment (No 4), [11], [13], [62]).

7   The delays occasioned from March 2020 to December 2023 (three years nine months) bespeak an error incompatible with the proper trial process and inconsistent with Civil Procedure Act, s 56.”

20. References have been changed to accord with the convention adopted in this judgment.

44. The second category comprised three grounds, being 5, 6 and 8, in the following terms:

“5 The trial judge erred in the manner by which he determined provision for each of Joel and Alexander (Judgment (No 4), [165], [167], [169]-[171]).

6 The trial judge erred in making the provision he did for each of Joel and Alexander (Judgment (No 5), [115], [116]).

8   His Honour erred in providing no reasons or no sufficient reasons (thereby exposing his reasoning process) in coming to the decision he did to make provision for each of Joel and Alexander.”

45. The third category was a single ground relating to costs:

“9   His Honour erred in exercising his discretion not to order the third respondent [Ms Weisbord] to pay the ordinary costs of the appellant up to 12 August 2016 and on the indemnity basis thereafter.”

This was the only ground relating to the third respondent.

46. The final (miscellaneous) category included grounds 2, 3 and 4. Ground 2 was as follows:

“2 The trial judge erred in making any assumptions about the financial circumstances of the appellant (Judgment 4, [162]).”

It will be appropriate to deal with this matter briefly, but in short, the assumption, whether right or wrong, had no material effect on the outcome.

47. Ground 3 challenged the finding that the claimants were “eligible persons” within the meaning of s 57(1)(e), a challenge which, as noted above, was immaterial given the alternative finding under s 57(1)(f). Ground 4 alleging error in finding “factors warranting” under s 59(1)(b), was not pressed.

Ground 2 - financial circumstances of executor/beneficiary

48. It is convenient to address ground 2 first. As to ground 2, the executor submitted that his financial circumstances, comfortable or otherwise, were irrelevant. A similar issue arose in Blendell v Blendell; Blendell v Blendell,^[21] where Meagher JA stated:

“42   [The primary judge] noted that the absence of evidence as to Michael’s financial resources and needs justified the inference that he had sufficient resources to meet those needs, whatever they might be …. His Honour then observed that it did not follow that Michael’s ‘competing’ claim as sole beneficiary should not be evaluated when assessing whether adequate provision had been made for the ‘proper’ maintenance and advancement in life of the adult children. That required regard also be had to Michael’s position as the deceased’s surviving spouse and the chosen object of her bounty ….

43   The former is an aspect of the consideration of the relationship between the deceased and a beneficiary, in Michael’s case having regard to their marriage of 50 years and his contribution to her estate (ss 60(2)(a), (d)). The latter acknowledges the need to give due regard to ‘what the testator regarded as superior claims or preferable dispositions’ (Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 at 19 (Dixon CJ); [1962] HCA 19). Here the deceased did not leave her estate to Michael for the purpose of benefitting him financially, but rather because she trusted him to decide how and when her wealth should be divided between their adult children. Although not emphasised by the primary judge, a relevant consideration was whether in this context the deceased had given appropriate consideration to whether some provision ought be made on her death for each of those children.”

21. [2020] NSWCA 154 (Meagher JA, Gleeson and Leeming JJA agreeing).

49. The primary judge’s reference to the executor’s circumstances went no further than to note that he neither made a claim on the estate nor put his own circumstances in issue as a factor limiting the amount of provision which might otherwise be ordered. Section 60(2)(d) permitted the court to have regard to “the financial resources … and financial needs, both present and future, of the applicant, … or of any beneficiary of the deceased person’s estate”. ^[22] It was entirely appropriate to identify Mr Rodny’s personal interests as matters which could and should be disregarded, and to explain why. Ground 2 should be rejected.

Grounds 1 and 7 – delays and updating evidence

22. See also s 60(2)(b) identifying as a factor the deceased’s responsibilities to “any beneficiary”.

General observations

50. Although ground 7 invokes a fundamental element of civil procedure, namely the guiding principles stated in Pt 6 of the Civil Procedure Act 2005 (NSW), a failure to comply with the principles does not of itself demonstrate a basis for setting aside a judgment or any particular orders. Apart from other difficulties, the existence of “delays” in the abstract fails to identify those responsible. Self-evidently, the executor cannot rely upon his own failure to comply with the statutory requirement in order to set aside the resulting judgment.

51. The written submissions in support of ground 7 identified two periods. One was the period of two and a half years from the delivery of Weisbord (No 3) in April 2021 until the final judgment in December 2023. The second was the period of six or seven years from the time evidence was given in 2017 until the final judgment in December 2023. The substance of that complaint, however, found expression in ground 1, challenging the failure of the judge to permit updating evidence.

52. With respect to the shorter period from April 2021 until final judgment, the submissions did not seek to attribute responsibility to the plaintiffs. Nor was it suggested that the delay had in some respect adversely affected the judge’s ability to make the final orders.

53. One aspect of the lengthy period during which these proceedings have been on foot is to make doubly unattractive the possibility of remitter for a further hearing in the Equity Division. The orders sought by the executor did not include remittal. The primary orders sought were that the appeal be allowed, the orders made on 15 December 2023 in favour of the plaintiffs be set aside and the summons of each seeking such orders be dismissed with costs. There followed two further proposed orders:

4   In the alternative to order 3 above (and in the event an order in the nature of order 3 is not made) the Court of Appeal reassess the provision to be made for each of the first and second respondents.

5   In the event the Court of Appeal considers it appropriate to make a family provision order for each of the first and second respondents, directions with regard to the filing and service of updating evidence in respect of the first and second respondents and the estate, and directions as to the further conduct of the proceedings.

54. There was an ambiguity in the formulation of these orders: was the proposal that this Court could reassess the amount of family provision contingent upon taking the steps for updating evidence referred to in order 5? If it were open to the Court to reassess family provision without updating evidence, was that consistent with the challenge to the failure of the primary judge to permit updating evidence, in ground 1?

55. If it were necessary to obtain updating evidence, it would be necessary to permit cross-examination, and, in effect, to conduct a second trial. That was not a course which would be adopted in this Court. In oral submissions, senior counsel for the executor proposed that the Court should conclude that without updating evidence the application should be dismissed, but, in the alternative, accepted that it was open to the Court to reassess the family provision without such evidence. ^[23] If the Court were to undertake a reassessment, on the basis of the available evidence, the true needs of the plaintiffs may be under-recognised, but that would be a consequence of their failure to provide evidence at the remitted hearing in 2021 and not a matter about which they could complain.

    23. CA Tcpt, 4 July 2024, pp 11(45), 13(15).

56. In relation to ground 1, it is convenient to identify its relationship with grounds 5 and 6. Ground 1 might be viewed in either of two ways. On one view, as a matter of statutory construction of s 59 of the Succession Act, the judge was obliged to permit (or require) updating evidence. On another view, whilst the judge had a discretion, the exercise of which could take into account other matters, such as prejudice to the plaintiffs if they were to be subjected to further cross-examination, in the circumstances of the case the need for further updating evidence was determinative of the exercise of the discretion.

57. As a freestanding ground, the failure of the primary judge to permit updating evidence could support the setting aside of the orders made and the dismissal of the applications for family provision. Alternatively, if the failure did not, of itself, constitute a miscarriage of justice requiring that the orders be set aside, nevertheless it constituted an error which led the primary judge to make orders on a false basis. In that sense, it fed into grounds 4 and 5 challenging the orders made. If ground 1 were not made good, grounds 4 and 5 constituted a separate and freestanding challenge to the orders for provision.

58. It is convenient to consider first the terms of s 59.

The statutory obligation

59. The executor submitted that s 59(2), set out at [42] above, required the court to make an order for provision “having regard to the facts known to the Court at the time the order is made”. That, it was submitted, obliged the court to permit or require the plaintiffs to ensure that their current circumstances were known to the court “at the time the order is made”.

60. As explained above, the primary judge considered, largely as a practical matter, that the section must be speaking of facts known to the court at the time judgment is reserved. There will almost always be some delay between the time when judgment is reserved and the time the orders are made. It would not be a reasonable reading of the statute to impose on the court some obligation to obtain updated evidence whenever judgment is reserved for more than a short period. Further, it is not possible to identify from the language of the section what period would trigger such an obligation. Where there is some delay, the court is entitled to assume that there has been no material change in circumstances, unless it is otherwise advised by a party.

61. The executor contended that the plain words of the section did not bear such a construction and that authority, the Court’s practice note and established practices, were inconsistent with such a construction.

62. It is appropriate to start with the language of the statute. Clearly it is not possible to read the words, “at the time the order is made” as if they were “at the time judgment is reserved”. However, it is necessary to consider the context in which the words appear and their apparent purpose in order to give them their proper effect.

63. As to context, the phrase preceding the temporal aspect is, “having regard to the facts known to the Court”. This is curious language: facts are not usually described as “known to the Court”, nor does the Court have regard to “the facts”. Rather, the Court has regards to the evidence and, where facts are disputed, it makes findings as to the facts, on the balance of probabilities. On one view, s 59(2) requires the Court to make the order which it considers appropriate, having regard to the evidence and any findings it has made, at the time the order is made. That accords with the language of the provision taken as a whole and makes practical sense. The evidence will be complete when judgment is reserved, but the facts will remain unresolved until judgment is delivered.

64. Once the preceding phrase is so construed, the temporal element takes a different flavour, but appears to be a statement of the obvious. Its purpose remains uncertain, but that uncertainty may be resolved by having regard to the surrounding text. Section 59(1)(c), which immediately precedes s 59(2), directs the Court to consider whether adequate provision has been made by the testator’s will. Section 59(1)(c) directs that the assessment be made “at the time when the Court is considering the application” and not, as might otherwise have seemed appropriate, as at the time of the testator’s death. Consistently, but for the direction in s 59(2), the intention might well have been to determine the amount needed to address the deficiency as at the time of the testator’s death. Read together, ss 59(1)(c) and 59(2) establish that events subsequent to the death of the testator (or intestate person) are to be taken into account, both in determining the need for, and in formulating an order for, provision.

65. The second aspect of context is to be found in what follows, namely s 59(3), which permits the Court to make a further order where the Court is satisfied that there has been “a substantial detrimental change in the eligible person’s circumstances since a family provision order was last made”. The ability to make a further order is a significant factor when making the initial order: there is no need for the Court to speculate as to any future deterioration in the eligible person’s circumstances. That in turn explains why in s 59(2) the court is to act on the facts known to it at the time it makes the order. In other words, there is no need to speculate as to the future and, indeed, the Court should not do so.

66. So understood, there is no reason to construe s 59(2) as imposing on either the court or the parties an obligation to update evidence until the moment judgment is delivered, with all the costs and potential delays which might be incurred as a result of an attempt to comply with such an obligation.

When is updating evidence required?

67. That is not to say that it is not important for a claimant to ensure that the court has current information before it when considering its judgment. If a detrimental change occurs, and the Court is not notified before making orders, the eligible person may miss out on a benefit, because the possibility of a further application only arises where the detrimental change occurs after the initial family provision order was made. But there is no reason to construe s 59(2) as obliging an applicant to put his or her best case forward.

68. On the other hand, there may be an obligation to provide updating information where not to do so would leave the Court to make an order based on false or misleading evidence. That is the limited principle to be drawn from observations of Leeming JA in Blendell: ^[24]

“78   … There are a number of distinct ways in which unsatisfactory conduct by applicants may manifest itself. One, as in In re the Will of F B Gilbert (1946) 46 SR NSW 318, is by perjury in support of their application. A second is non-compliance with the obligations imposed by s 56 and applicable practice notes. A third, which was raised in relation to Dominic, is the disregard for a court order, leaving a party in contempt.

…

80   The applicant [in] In re the Will of F B Gilbert was Mrs Annie Elizabeth Gilbert, the deceased’s second wife, who was found to have perjured herself in understating her assets. … Roper J said her evidence was ‘very unsatisfactory’. Jordan CJ said that even after some of her false evidence had been disclosed, ‘I do not feel wholly satisfied that even now all the facts, the onus of proving which is upon the applicant, are before the Court’: at 324-325. Nonetheless, the Court confirmed that some further provision should be made in her favour, and rejected the proposition that her perjury was per se disentitling.

…

85   The deficiencies attending both Julian’s and Dominic’s applications were essentially evidentiary. The primary judge made no error in proceeding on the basis that (a) the executor pointed to no hardship, and (b) [given] what was left … after deducting agreed amounts of provision to Denise and Nicholas, and large legal costs, the estate was sufficiently large that a relatively broad brush approach was sufficient.”

24. See fn 21 above.

69. There was no submission in the present case that the plaintiffs had given false or misleading evidence, and a suggestion that their circumstances had significantly improved since 2017 was not supported by evidence. ^[25] It follows that, although the executor’s challenge to the rewriting of s 59(2) by the primary judge succeeds, his attempt to derive an obligation to file updating evidence from the language of s 59(2) fails.

    25. Tcpt, 2 March 2021, p 2(35).

Relevance of delay – determining ground 1

70. However, it does not follow that ground 1 should be rejected. As has been noted, it was the executor’s case in 2021, prior to Weisbord (No 3), that updating affidavits be filed, not only by the plaintiffs, but by the executor himself. There had been a trial, an appeal, and an application for special leave to appeal, all involving costs orders, which in total were known to exceed $2 million. ^[26] Although the executor put on no formal notice of motion, neither his position, nor that of the plaintiffs, was in doubt. Accordingly, the primary judge was required to rule upon the issue as to whether updating affidavits should be required. The substantive question for this Court is whether the judge’s ruling not permitting such additional material was erroneous because the proper conduct of the trial required that such material be provided.

    26. Weisbord (No 5) at [174].

71. Although the judge placed primary emphasis on his understanding of the statutory scheme (“the true answer” to the executor’s application ^[27] ), there appear to have been three further reasons why the judge considered that updating evidence should not be required. First, the primary judge relied upon the absence of any formal application by the executor to reopen his case, and the executor’s failure to identify “the general nature of any updating evidence” that he contended should be put before the Court. ^[28] Whether it was appropriate to require the executor to make a formal application to reopen his case was largely beside the point; the judge happily referred to his “application”. ^[29] Further, the executor had indicated that updated information should be made available as to costs incurred by the estate and the valuation of its assets. The contentious issue was whether the plaintiffs should have been directed to provide updating affidavits as to their circumstances, which would not require the executor to reopen his case. This aspect of the judge’s reasoning was unpersuasive.

    27. Weisbord (No 3) at [22].

    28. Weisbord (No 3) at [16] and [17].

    29. Weisbord (No 3) at [18] and [22].

72. Secondly, because the judge could have taken a different course in 2018, he considered it unfair that the outcome might depend on when the court made the determination. ^[30] While that analysis may have some weight from the perspective of the plaintiffs, theirs was not the only relevant perspective. Ultimately, whatever the vagaries of litigation, the court is required to determine the applications before it having regard to fairness to both parties and applying the relevant legal principles. Similar circumstances could have arisen if the family provision claims had been dealt with, but the orders had been set aside on appeal and a retrial ordered. This reason is similarly unpersuasive.

    30. Weisbord (No 3) at [24].

73. Thirdly, the judge stated:

“25   The practical arguments put by the plaintiffs in support of their contention also carry weight.  … The defendant had left open the question of whether a further hearing and cross-examination of witnesses would be required following the service of the updating evidence. The plaintiffs put forward evidence at the hearing of the psychological difficulties from which they suffer, and they submitted that they should not be subjected to the doubts and anxieties, as well as the costs, that would follow if the Court made open-ended case management orders that permitted the defendant to serve evidence as to events that have occurred after the Court first reserved judgment.”

74. Stress to the plaintiffs that would follow “if the Court made open-ended case management orders” overstated the nature of the concern. Courts are confronted daily with parties and witnesses who are genuinely vulnerable to the stresses of litigation and, particularly, of giving evidence and being cross-examined. Those concerns should not be disregarded, but they are addressed by case management orders, including the imposition of proper restraints on the extent and length of cross-examination. The reference to “open-ended case management orders” was misconceived. The issue was in any event not related to such evidence as the executor might serve; rather, this reasoning carried some, but limited, weight, by reference to the stresses of further cross-examination. That weight was limited because, contrary to the statement (in the present tense) that “the plaintiffs put forward evidence at the hearing of the psychological difficulties from which they suffer”, they did not do so in 2021, but only in 2017. These “practical arguments” may be acknowledged but should not be given dispositive weight.

75. The judge confronted the apparent inconsistency in admitting evidence of the current value of 102 Balfour Road in Weisbord (No 5), stating:

“55   I reject the suggested equivalence between unidentified and open-ended new evidence relevant to the plaintiffs’ circumstances that would risk a complete renewal of the hearing on the one hand, and evidence of the current value of the assets in the estate on the other hand. The latter type of evidence is an objective integer that may be crucial to the formulation and proper operation of the orders for further provision and costs orders that the Court might make. It is evidence that is independent of the conduct of the parties.”

76. This reasoning was flawed for two important reasons. First, it underestimated the importance of current information as to the needs and resources of the plaintiffs. Secondly, it revealed that the factor which underpinned the judge’s approach was the weight to be given to the testamentary intentions of the deceased. That is, the orders were calculated as a proportion of the value of the property, subject to a discount of 12.5%, as “an allowance” for the fact that the plaintiffs had not given specific evidence addressing their accommodation needs. ^[31] The validity of that approach depends upon whether it was appropriate to give determinative weight to the intention derived from the unexecuted will. That in turn is a matter to be addressed in the context of grounds 4 and 5.

    31. Weisbord (No 5) at [62].

76. The very fact that it was appropriate to permit current valuation evidence for 102 Balfour Road, and then necessary to apply a “discount” to the plaintiffs’ claims, demonstrated the difficulty with the refusal to allow updating evidence. The ruling was waived in favour of the valuation evidence, a ruling made at the plaintiffs’ behest and a waiver which strongly favoured their interests. Their current needs were not assessed, and the effect of litigation costs incurred by the estate were ignored.

77. Ground 1 should be upheld, not on the basis that there was a statutory obligation to require the provision of evidence of the plaintiffs’ current needs, but on the basis that the proper conduct of the proceedings, according fairness to all parties, required that course in the circumstances at the time of the remittal.

Grounds 5, 6 and 8 – determining amount of provision

Executor’s claims

79. The executor’s challenge to the outcome, namely the provision orders in favour of the plaintiffs, had two elements. The first was that giving weight to the gifts made by the testator to her grandchildren, both under the 1997 will and under the unexecuted 2008 will, involved an element of speculation as to her final testamentary intentions. There was, he submitted, no evidence as to why the Carramar property, the subject of the 1997 gift, was sold in 2003, nor as to why the testator did not seek to vary her will until 2006, then did not pursue the variation until 2008, and finally did not execute the draft will before her death some six years later. Further, while the executor accepted that the testamentary intentions of the testator was a relevant consideration, pursuant to s 60(2)(j) of the Succession Act, he submitted it should not be given dispositive weight; the primary consideration should be the responsibilities of the testator to the plaintiffs, having regard to their financial resources and needs, pursuant to s 60(2)(b) and (d).

80. The second element in the executor’s case was the absence of up-to-date evidence as to the plaintiffs’ financial resources and needs. It will be necessary to address this complaint in more detail shortly: it suffices to say, the adequacy of the provision to the plaintiffs should have regard to their needs as described in 2016 in the evidence before the primary judge at the hearing in 2017, but the weight to be given to that evidence must be diminished having regard to the passage of a further seven years.

81. The reasons of the primary judge placed considerable, if not dispositive weight on his understanding of the testator’s intentions and it is convenient to address that issue first.

Testamentary intentions

82. With respect to the executor’s complaint of “speculation” concerning the testator’s intentions as to the plaintiffs, the primary judge was correct to accept that the unexecuted 2008 will did state the deceased’s testamentary intentions. So much was accepted by the executor in this Court in the probate appeal. ^[32] The lack of evidence to support a finding that the testator intended the unexecuted document (which she had never seen) to constitute her will did not affect that conclusion; nor did the fact that the draft, perhaps wrongly, lacked the bequests of jewellery which had been in the 1997 will. Although the evidence was inconclusive as to why she did not execute the document, there was no evidence that she had changed her mind with respect to her intention to confer a benefit on her grandsons, although the proposed gift treated all four grandchildren equally.

    32. Rodny v Weisbord [2020] NSWCA 22 at [12].

83. However, two points may be noted with respect to that intention. First, each of the four grandchildren was intended to benefit equally. Secondly, by leaving a property, it should not be inferred that she was intending to provide accommodation, as opposed to a financial benefit dependent on the value of the property. There was no evidence that the girls (as they were in 2008) were in need of accommodation, nor that all four grandchildren were expected to occupy the property. Given that the vesting of each share would only occur when each turned 18, such an intention would have been impractical.

84. Further, the possible inference that the testator intended her grandchildren to obtain a benefit sufficient to provide each with his or her own accommodation, is itself open to doubt. First, there was no evidence (at least, this Court was not taken to such evidence) that 102 Balfour Road was free of any mortgage, in 2008; nor did the draft will require that it be transferred free of any mortgage. However, the 1997 will had left the property to Mr Rodny, together with the residue, on the basis that it was subject to a mortgage and potentially to a liability for capital gains tax. (The 2008 unexecuted will was not in the evidence provided for this appeal, but the edited version set out in the judgment of this Court in the probate appeal, did not refer to the gift being free of any mortgage.)

85. Secondly, if there had been an intention on the part of the testator in 2008 to provide a sufficient sum to cover, or at least assist, her grandchildren with their needs for accommodation, it was necessary to take account of the passage of some 15 years since that intention was expressed. Whatever needs may have been foreseen at that time, or responsibilities accepted at that time, must now be given diminished weight.

Reasoning of primary judge

86. In Weisbord (No 4) the primary judge considered the appropriate further provision for the plaintiffs at [166]-[171]. The reasoning commenced:

“166 At the centre of debate in this case has been the significance of the evidence of the deceased’s testamentary intentions, being a factor in the Court’s consideration made relevant by s 60(2)(j) of the Succession Act.”

87. After stating why the Court should be satisfied that those testamentary intentions were reflected in the unexecuted 2008 will, the judge stated:

“167 In these circumstances, I consider that it will be proper for the Court in the exercise of its discretion under s 59(2) of the Succession Act to give exceptional force to the evidence of the deceased’s testamentary intentions ….

168 In this case, the prominence that should be given to the deceased’s testamentary intentions is not to any significant degree diluted by a consideration of the other factors made relevant by s 60(2) of the Succession Act.”

88. After noting that Ms Weisbord had assets valued at some $8.7 million, that Mr Rodny did not make a claim for further provision and that the granddaughters had not made claims, the judge then stated:^[33]

“Consequently, there is little evidentiary barrier to the factors made relevant by s 60(2)(a), (b), (d) and (f) of the Succession Act, and which have generally been considered above, reinforcing the significance of the evidence of the deceased’s testamentary intentions.”

33. Weisbord (No 4) at [168].

89. The judge then stated:

“169   If the deceased had succeeded in leaving a will that contained the proposed gift to the grandchildren in the second typewritten draft, the four grandchildren would have become entitled to equal shares in a property worth $5.1 million, so that each would have received $1.275 million. I do not think that it would be appropriate for the Court to make an order for further provision in favour of Joel and Alexander that gave them the same outcome as if the deceased had succeeded in making a formally valid will that had that effect. However, in this case, I consider that only a small discount is necessary to allow for uncertainties that arise in respect of the deceased’s failure to have executed a valid will embodying her apparent testamentary intentions. All other things being equal, I would have made an order in the exercise of my discretion that a lump sum legacy of $1.0 million be paid to each of Joel and Alexander out of the deceased’s estate. That legacy would represent 80% of the gift that those applicants would have received under a validly executed will in the terms of the second typewritten draft will.”

90. There are three aspects of this reasoning which should not be accepted. First, for reasons which will be explored further below, the reliance on pars (a), (b), (d) and (f) of s 60(2), as reinforcing reliance on the deceased’s testamentary intentions is obscure. Without further explanation, some of those factors weigh against giving “exceptional weight” to the testamentary intentions expressed in the 2008 unexecuted will; each requires separate consideration.

91. First, par (a) refers to the relationship between a claimant and the deceased person. However, reliance on testamentary intentions was justified by reference to the deceased being “the best judge of how to dispose of her estate”: at [167]. That involved duplication of the reliance placed on the unexecuted will, rather than a separate assessment by the court.

92. With respect to par (b) (dealing with the deceased’s obligations to the claimant), reliance had been placed on extensive evidence given by the plaintiffs of the support obtained from their grandmother, particularly during their childhood. That does not of itself demonstrate a continuance of a moral obligation into adulthood. In 2008, the plaintiffs were 20 and 23 years of age respectively. It will be necessary to look with greater care at the evidence of subsequent dependency. However, the support given during childhood was linked, on their own evidence, to the inadequacies of the upbringing provided by their mother.

93. With respect to par (d) (which refers to the financial resources and financial needs “both present and future” of the claimant), the only evidence available to the primary judge was that provided in 2016, from which, no doubt, certain matters could be extrapolated, but only with a significant degree of imprecision and uncertainty.

94. As to par (f) (referring to “any physical, intellectual or mental disability” of a claimant), the evidence given in 2016 and 2017 could in large part be safely relied upon five years later. However, evidence of financial resources and disability were themselves properly matters to be taken into account in their own terms, rather than as reinforcing reliance upon the testator’s intentions. That was not an exercise which the primary judge undertook.

95. Secondly, the calculation undertaken at [169] gave dispositive weight to the value (as known to the Court) of the property which they might have taken under the unexecuted 2008 will had it been admitted to probate, subject to a “small discount” said to embody “uncertainties” arising from her failure to execute it. With respect, that approach disregarded the fact that the grandsons were 35 and 38 years of age respectively at the time judgment was delivered, that their mother, who had a stronger responsibility for their advancement in life had substantial assets, and that there was no up to date evidence of current needs.

96. Thirdly, the judge acknowledged the deficiencies in the evidence stating that “the Court cannot ignore the consequences of the costs of proceedings being paid out of the deceased’s estate, particularly as the amount of some of those costs is not known to the Court”: [170]. The judge also noted that the Court had “no evidence of changes in values of the estate’s properties since judgment was reserved on 12 April 2018”. The judge then indicated that each of the plaintiffs and the executor should have an opportunity “to provide brief written submissions as to whether the Court should vary its stated intention to order that legacies of $1.0 million be paid to each of Joel and Alexander”: at [171]. The history of what happened thereafter, allowing the plaintiffs to put on evidence of a doubling in value of 102 Balfour Road, has been set out above. The proposed provision was not doubled, but increased to $1.75 million for each plaintiff. No account was taken of the likely costs which had been incurred by the estate resulting from the litigation.

Challenge to orders for provision – conclusion

97. In order to determine whether there was error on the part of the primary judge in these respects and, for this Court to consider the appropriate weight to be given to such matters, it is convenient to start with certain principles governing the making of orders for provision in favour of members of a testator’s family.

98. First, although the court conventionally approaches the exercise in stages, the jurisdictional element, or factor which engages the power to make such an order, should not be disregarded in determining the appropriate provision. As has been observed in considering questions of eligibility, the Act does not assume that a testator has a moral responsibility to provide for grandchildren: the primary responsibility for their welfare lies with their parents. That remains a relevant consideration in assessing the adequacy of provision.

99. Secondly, the Court must ask whether the testator made “adequate provision” for the claimant in his or her will. That consideration is supplemented by the factor identified in s 60(2)(i), namely the provision made for the claimant by the testator during her lifetime. Although the fact that a testator has made provision in a will may demonstrate an acknowledgement of responsibility for the claimant’s personal wellbeing, it is not to be assumed that the provision made was inadequate, or the responsibility on-going.

100. The remittal of the family provision claims to the primary judge following the appeal in the probate proceedings undoubtedly placed the judge in a difficult position. The possibility of permitting or requiring the parties to provide further evidence, in circumstances where family relationships were fractured and any further evidence was likely to give rise to disputation, was unattractive. Nevertheless, the very considerable lapse of time and the statutory obligation for the court to make orders based on current circumstances at the time of judgment, indicated that further evidence should have been required. The case provides an example of the risks of following shortcuts. When the difficulties of that course became apparent, in Weisbord (No 4), the course taken was, again understandably given the further passage of time, not to reconsider the decision not to require further evidence, but to permit it on a limited basis. However, that limited basis was partial to the plaintiffs and did not provide the full circumstances on which orders should have been made.

101. Thirdly, the “exceptional weight” given to the testator’s intentions as expressed in the unexecuted 2008 will, while apparently sidelining the need for up-to-date evidence of the plaintiffs’ situations and the financial status of the estate, in fact diverted the primary judge from a proper consideration of all material factors.

102. For each of these reasons, the appeal must be allowed. It is then necessary to address the consequences of that conclusion.

103. As has been explained in relation to the orders sought by the executor, the circumstances facing this Court in making alternative orders mirror those faced by the primary judge, subject only to a further lapse of time since the evidence of needs was provided by the plaintiffs at trial. The executor’s primary position is that the lack of updating material should have led the primary judge to dismiss the applications brought by the plaintiffs and this Court should take that step. In the alternative, the executor submitted that the Court could make an order for provision, by reference to the limited material available to the primary judge. He abandoned the third theoretical possibility that this Court could remit the matter for a retrial. The plaintiffs did not seek a retrial.

104. For reasons explained above, s 59 of the Succession Act does not preclude the Court from making orders in the absence of up-to-date information as to the plaintiffs’ needs. As with other civil litigation, the Court does not lack jurisdiction because of the inadequacy of the material presented by the parties. Where the material is inadequate, the party bearing the onus of proof will be the one to suffer any prejudice which results. As neither party sought a remittal of proceedings in the event that the appeal was upheld, the Court should accept their entitlement, on an appeal by way of rehearing, to the judgment of this Court.

Reassessment of claims for provision

105. In undertaking this exercise, it is appropriate to take account of the fact that when the grandchildren were young the testator thought it appropriate to leave them a property which, however, she subsequently sold to provide for her own needs. The evidence of the executor, which the judge accepted, was that the Carramar property was sold in 2003 for $1.25 million. ^[34]

     34. Weisbord (No 1) at [22].

106. The value of 102 Balfour Road at the date of the unexecuted will in 2008 is not known. At the time of the trial in 2017 it was said to be worth $5.1 million. ^[35] There is a question as to whether this Court should take into account the further valuation obtained whilst judgment was reserved in 2023. Although in Weisbord (No 5) the judge relied upon the further valuation, he considered it necessary to allow for the fact that “the new valuation has not been subject to scrutiny (having regard to the two appraisals that were submitted by the plaintiffs that were below the value adopted by the valuer)”. ^[36] Further, it would be inappropriate to assume that the full increase in value would accrue to the estate, which had been valued in 2018 at approximately $11.1 million, without bringing into account the costs of realising the value, including payment of CGT.

     35. Weisbord (No 1) at [21].

     36. Weisbord (No 5) at [62].

107. It would also be necessary to take into the calculation the very considerable costs for which the estate was liable, as a result of the earlier litigation. The executor had given evidence that, as at 22 September 2017, the estate had borne expenses totalling some $245,000. ^[37] In a subsequent affidavit, he noted that the costs to the estate of the first hearing and the appeal were $827,000 and that, in an affidavit dated 3 April 2019, the plaintiffs’ solicitor had claimed the costs required to be paid out of the estate by the Court order then in force stood at $1.444 million. The proceedings since that time have been outlined above: there have been an appeal to this Court and three further judgments in the Equity Division. If the estate were required to pay those additional costs, it seems likely that the total legal costs will be in the order of $3 million. No doubt the estate has also borne the ongoing costs of maintaining the properties which are in dispute. Making allowance, as did the primary judge, for the possibility that a sale of 102 Balfour Road might not reach the valuation, it is quite possible that the net increase in value is largely offset by the costs which have not been accounted for, including the legal costs. Without the increase in the value of the property, the primary judge would have awarded each of the plaintiffs $1 million by way of provision from the estate.

     37. Affidavit, Laurence Rodny, 3 October 2017, par 5.

108. The next consideration concerns the other factors to be taken into account. First, the purpose of a family provision order is not to give effect to the terms of a will which remained unexecuted and is not the subject of a grant of probate.

109. Secondly, to the extent that the unexecuted will demonstrated an intention to benefit the plaintiffs, that factor may be taken into account and given weight. However, the amount of an appropriate benefit must be determined by the Court in accordance with the considerations listed in s 60 of the Succession Act. It is not the Court’s function to rewrite the will according to some inchoate principle of fairness. ^[38]

     38. Steinmetz v Shannon (2019) 99 NSWLR 687; [2019] NSWCA 114 at [95] (Brereton JA).

105. Thirdly, the Court should give proper weight to the matters identified as relevant to a claim by a grandchild by Hallen AsJ in Bowditch v NSW Trustee and Guardian ^[39] approved in general terms in Chapple v Wilcox. ^[40] It was therefore necessary to start with the proposition that a grandchild was not normally regarded as a natural object of testamentary recognition. A corollary of that proposition is that where a testator has sought to “skip a generation”, for no acceptable reason, a parent with continuing care and responsibility for the young children may succeed in a family provision claim. ^[41] Ms Weisbord’s claim might have invoked that principle.

     39. [2012] NSWSC 275 (“Bowditch”) at [113].

     40. (2014) 87 NSWLR 646; [2014] NSWCA 392 at [17]-[21] (in my judgment, Gleeson JA agreeing at [150]).

     41. Bohen v Mitchelmore [2024] NSWSC 171 at [30]-[33].

106. That does not mean that, where it is clearly indicated that the testator, for good reason, sought to benefit her grandchildren (or some of them) that would not form a sound basis for a family provision order. The inadequacies of the parents as carers could constitute good reason. However, as Hallen AsJ further stated in Bowditch at [113(d)]:

“Generosity by the grandparent to the grandchild, including contribution to the education of the child, does not convert the grandparental relationship into one of obligation to provide for the grandchild upon the death of grandparent.”

112. Nor should it be assumed that substantial support given whilst the children were under 18 years of age was intended to continue throughout their adult lives. Nevertheless, it may be accepted that the testator continued to provide some support to the plaintiffs during her lifetime when they were entering their twenties. However, the evidence relied upon by the primary judge in Weisbord (No 4) at [143]-[154] (which need not be repeated here), related almost entirely to the financial care and support provided to the plaintiffs when they were under 18 years of age. The judge also referred to evidence of the plaintiffs’ sister (describing the testator as a second parent to the grandchildren). The judge accepted that that evidence “broadly reflects the true position that they lived in her house as their home for substantial, relatively unbroken periods during their adulthood”. ^[42]

     42. Weisbord (No 4) at [157].

113. The primary judge also accepted evidence as to the plaintiffs’ health and financial resources. Indeed, as the judge noted, the executor also broadly agreed that Joel Weisbord “has suffered from significant medical and psychological disabilities”. ^[43] Those difficulties were summarised in Weisbord (No 4) at [103]-[104] (in respect of Joel) and at [105]-[106] (with respect to Alexander). Their evidence was referred to in Weisbord (No 1) in opening paragraphs, though not in detail given the limited relevance to the probate proceeding and for matters of privacy. ^[44] The judge concluded in Weisbord (No 1):

“16   The evidence establishes that over the course of the plaintiffs’ lifetimes Mrs Rodny provided substantial, if not exceptional, emotional, material and financial support to her daughter’s family out of love, and in apparent recognition of the special needs that they had.”

43. Weisbord (No 4) at [102], referring to Weisbord (No 1) at [15].

44. Weisbord (No 1) at [9].

114. There is no doubt that the judge was entitled to accept the accounts given in the plaintiffs’ affidavits. ^[45] That evidence was not significantly challenged in cross-examination. ^[46] The thrust of the challenges was that both plaintiffs had understated their capacity to study and work. With respect to Joel Weisbord, that included an extended period when he was studying in Israel. He agreed that he got $25,000 from an aunt’s will and used it to set up a business which failed. ^[47]

     45. See affidavit of Joel Weisbord, 5 November 2015 at pars [22], [30]-[33] and [38]-[47]; Alexander Weisbord, 14 March 2016 at pars [36]-[37], [101], [114], [116] and [137].

     46. Tcpt, 17 October 2017, pp 307-330 (Joel Weisbord); pp 336-345 (Alexander Weisbord).

     47. Tcpt, p 323(20).

115. It may be accepted that, given the testator’s intention to benefit her four grandchildren, and including the plaintiffs, it is appropriate that orders for provision from the estate be made. However, the absence of any evidence as to their needs since their affidavits were prepared in 2016 (and cross-examination in October 2017) makes it difficult to assess those needs at the present time. It may be correct that, as their counsel submitted, their circumstances have not improved since 2017; however, there was no evidence to support that proposition. Indeed, the reason why there was no such evidence was because they had declined to provide it. There was not even evidence that they would suffer significant stress if, which was not a necessity, they were cross-examined for a second time. The cross-examination could properly have been limited by an appropriate order, depending on the evidence they put forward. The transcript of the evidence of both together in October 2017 covered 54 pages or a little over half a day. There was no evidence that they found the experience particularly stressful, nor does the transcript give rise to an inference to that effect.

116. Even assuming, in the absence of evidence of their present circumstances, they have an unsatisfied need for stable accommodation, and a mother who is unwilling to provide assistance, it does not follow that it would be appropriate for this Court to interfere with the testator’s actual disposition of her estate by finding that she had an unfulfilled obligation wholly to provide the means to satisfy those needs.

117. On the other hand, it may be accepted that the plaintiffs’ physical and mental disabilities have not abated, or not to a significant extent. Nevertheless, their evidence in cross-examination limited one’s confidence in a finding that they were not capable of obtaining qualifications or gainful employment. It seems more probable than not that their limitations would render stable employment unlikely. They had, before 2017, during the better part of a decade after leaving school, failed to obtain stable employment.

118. It is relevant to have regard to the size of the available estate. If neither the increases in value of the properties, nor the costs and liabilities of the estate are adequately identified in the evidence, the Court is largely limited to the inventory relied upon by the primary judge in Weisbord (No 1) at [19]. That inventory valued the estate at $11.6 million. The principal items were the properties at 77 and 102 Balfour Road (valued at $4 million and $5.1 million respectively), the shares in Karod (valued at $1.5 million) and an interest in the estate of a sister-in-law of the deceased, Ms Singer, (valued at $558,000). The other smaller items, being mainly jewellery and personal effects, were bequeathed individually to family members and may be put to one side for present purposes. Further, to the extent that 77 Balfour Road was given free of any mortgage to Ms Weisbord, and constituted a significant part of the reason why she did not obtain further provision, that item should also be disregarded. The remaining items constituted gifts (including of the residue) to Mr Rodny. They total $7.16 million. The Court should accept, as did the primary judge, that Mr Rodny has no competing needs.

119. On the basis of the values then known to the primary judge, he proposed an order for provision of $1 million to each of the plaintiffs. For reasons explained above, that provision overestimated the weight to be given to the assumed intentions of the testator. However, the estate is one which is capable of bearing an order for substantial provision of a kind not commonly made. Having regard to the known disabilities and the assumed continuing needs of the plaintiffs, the appropriate course is to order provision for each in an amount of $700,000.

Costs appeal

120. On 15 December 2023, the primary judge made orders dismissing Ms Weisbord’s summons seeking additional provision from the testator’s estate and ordered that she pay the executor’s costs of the proceedings from 19 June 2019 on the ordinary basis. (The executor obtained an order for his costs from the same date to be paid out of the estate, assessed on an indemnity basis.) Ground 9 in the notice of appeal sought an order that Ms Weisbord pay the executor’s costs assessed on the ordinary basis up to 12 August 2016 and thereafter on an indemnity basis.

121. While the notice of appeal combined the proceedings brought by the plaintiffs and Ms Weisbord in the one document, the only ground directed to Ms Weisbord’s proceeding was with respect to the costs order. That was, in substance, an appeal with respect to “costs only”, which required leave pursuant to s 101(1)(c) of the Supreme Court Act 1970 (NSW). The need for leave was not to be disguised by joining what were in effect three separate appeals in one document. Neither party took any issue with respect to this matter and, while it remains a live issue, the submissions should be dealt with on the merits.

122. On 11 August 2016, the executor made two offers of compromise, one in each of Ms Weisbord’s proceedings. In the probate proceeding, the offer included dismissal of the statement of claim with payment of Ms Weisbord’s costs in an amount of $1,000. (That offer is not relevant to the family provision proceeding.) However, an offer was made on the same date, 11 August 2016, in the family provision proceeding on the basis that the summons be dismissed and the plaintiff’s costs in the sum of $5,000 be paid from the estate. The offer was not accepted.

123. The offer sought to be relied upon in support of an order for indemnity costs was made prior to the first trial. The costs of that trial were dealt with in the judgment of 27 March 2019, Weisbord (No 2). Although the costs orders were in part contentious, the judge recorded that “the parties are agreed that the starting point should be that the costs of the plaintiffs on the one hand, and Laurence on the other, should be paid out of the estate on the ordinary basis”. ^[48] The judge continued:

“35   Laurence did not submit that, for the purposes of the costs order that should be made, the plaintiffs' family provision claims should be treated separately and not as part of the overall costs of the proceedings.”

He further noted that “Laurence’s senior counsel explicitly accepted that the effect of an order made by the Court at an earlier time that all of the proceedings be heard together was that there should be a single costs order”. ^[49]

48. Weisbord (No 2) at [34].

49. Weisbord (No 2) at [37].

124. As the plaintiffs and Ms Weisbord had succeeded at the trial, no issue arose in relation to the executor’s offers of compromise. The judge made the agreed order that the plaintiffs’ reasonable costs of the proceedings “be paid on the ordinary basis out of the estate”: order 2, entered 2 July 2019 in each proceeding. That order was, however, stayed pending the determination of the appeal by order 4.

125. Although the notice of appeal had included a proposed order setting aside the costs order, Meagher JA noted that “it is not suggested that in the event of the appeal being allowed, the costs orders made by the primary judge should be set aside”. That was consistent with it also being common ground that the costs of the appeal, assessed on the ordinary basis, should be paid out of the estate. ^[50] Accordingly, the orders made in February 2019 were set aside, but not the orders in relation to costs made in July 2019. The executor’s position in the appeal proceedings was consistent with his approach before the primary judge at the first trial, namely that costs of the probate proceeding and costs of the family provision proceeding not be separated.

     50. Appeal judgment at [96].

126. In dealing with the present application in Weisbord (No 5), the judge referred to authority in this Court dealing with the operation of r 36.16(3A) of the Uniform Civil Procedure Rules 2005 (UCPR). He concluded:

“92   The legal position therefore is that the costs of the probate claim have finally been determined by orders of the Court that have been entered, and it is now too late for Mr Rodny to make an application for an order setting aside or varying the orders that have already been made in those proceedings.”

127. There was no indication, either in written submissions or orally, as to why the judge’s conclusion as to the finality of the earlier costs order was erroneous. Whilst it was undoubtedly open to the executor to pursue his challenge to the earlier costs order on the appeal, not having pursued that step, the order with respect to costs up to and including 2 July 2019 must be treated as final. The only question remaining to be determined was whether the executor could rely upon the offer of compromise to seek an order against Ms Weisbord personally in respect of the costs of the family provision proceeding following the first appeal and the determination of the special leave application in the High Court.

128. The judge accepted that costs should follow the event and that Ms Weisbord should pay the executor’s costs of the proceedings from 19 June 2019, being the date on which judgment was delivered in Weisbord (No 2). As to the offer of compromise, the judge described the proposal for dismissal of the provision claim with a “trivial” amount on account of costs as not constituting a real or genuine compromise. ^[51] The judge described her claim as “by no means trivial or frivolous”. ^[52]

     51. Weisbord (No 5) at [99] and [101].

     52. Weisbord (No 5) at [101].

129. Although the executor submitted that the amount of the costs which had been incurred at that time would not have been large, and the offer therefore a true compromise, that was not the approach adopted by the trial judge. In referring to the claim as neither frivolous nor trivial, the judge was assessing the offer by reference to the total rejection of the claim.

130. As a matter of principle, the approach of the trial judge was correct. The purpose underlying the rule, involving encouragement of settlement, is not satisfied unless there is an element of “compromise” involved in the offer. A “walk-away” offer by a defendant may not involve a sufficient element of compromise, unless there is some real concession as to costs. ^[53] Where the costs incurred are likely to have been small, that may be hard to establish. Whether, objectively considered, the element of costs should have been seen at the time as other than a trivial amount, was a matter for the primary judge. It was not established by the executor that the judge’s assessment in that respect was clearly unreasonable or led to some patent injustice. Indeed, the better view is that there was no error.

     53. Leach v The Nominal Defendant (QBE Insurance (Australia) Ltd) (No 2) [2014] NSWCA 391 at [41]-[42] (McColl JA, Gleeson JA and Sackville AJA agreeing); Langdon v Carnival PLC [2024] NSWCA 168 at [232].

131. Indeed, it would have been open to the primary judge to have rejected the offer on two further bases. One was that it sought to isolate Ms Weisbord’s claim from that of the plaintiffs. That was necessary for the executor, because the plaintiffs succeeded in their claims. However, it was appropriate for the three claims to be run together on the basis that the Court might have concluded that the grandsons’ claims would fail but that Ms Weisbord’s claim, as the testator’s daughter and as the family member responsible for the grandchildren should succeed.

132. Secondly, the claim for indemnity costs could properly have been rejected on the ground that, by the time the family provision proceedings recommenced in 2021, the offer made in 2016 was spent.

133. Each of these reasons is sufficient to refuse the executor leave to appeal with respect to the costs order involving Ms Weisbord.

Costs of appeal

134. With respect to the plaintiffs, although the appeal has been allowed, they have retained family provision orders in significant amounts. Their costs of the appeal should be assessed on the ordinary basis and paid from the estate. Ms Weisbord should also have the costs of the executor’s unsuccessful appeal in relation to her claim from the estate. As she and the plaintiffs had common representation, there should simply be an order that the respondents’ costs be paid by the estate.

Orders

135. The following orders are proposed:

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.

**********

Endnotes

Amendments

14 August 2024 - Complete reference in headnote at par 6.

30 October 2024 - Add additional dates under decision under review

Decision last updated: 30 October 2024