The Court: (a) Orders that the Statement of Claim be dismissed. (b) Orders, subject to the order in Paragraph (c), that the Plaintiff pay the Defendant’s costs, calculated on the ordinary basis, incurred prior to 4 April 2018; and pay the Defendant’s costs, calculated on the indemnity basis, after that date. (c) Orders that the Defendant pay the Plaintiff’s costs of the part of the proceedings relating to the production of the Will of the deceased, up to, and including, 4 December 2017, (excluding the filing fee of the Statement of Claim). (d) Orders that the Exhibits be dealt with in accordance with the Uniform Civil Procedure Rules 2005 (NSW) (rule 31.16A and rule 33.10) and Practice Note No SC Gen 18.
Catchwords:
SUCCESSION — FAMILY PROVISION — The Plaintiff, an adult child of the deceased, makes a claim for a family provision order — No dispute as to the Plaintiff’s eligibility as a child of the deceased — Proceedings commenced within time prescribed by Act — Nature of relationship of the Plaintiff and the deceased — Lengthy estrangement and lack of any contact between the Plaintiff and the deceased for over 25 years — Estate comprises, at the date of hearing, primarily of the deceased’s home in which one son of the deceased has lived for many years — Right of residence given to that son for as long as he wishes to reside therein, or until his death, and thereafter, the estate divided between 5 of the deceased’s 6 children — No provision made for Plaintiff — Competing claim of each of the beneficiaries — Plaintiff, at the hearing, does not seek immediate provision but provision after right of residence is terminated — Reasonably large estate in value — Whether family provision order should be made, and if so, the nature and quantum of the provision to be made — Order that claim for family provision order be dismissed
COSTS — Offer of Compromise served about 7 months prior to the date for hearing — Defendant obtained order no less favourable than offer made — Whether Court’s discretion should be exercised to depart from UCPR and order the Plaintiff to pay the Defendant’s costs, calculated on the indemnity basis, from the day after the date of service of the Offer of Compromise — Whether overall justice of the case warrants exercise of the Court’s discretion
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Rogers v Rogers [2018] NSWSC 1982
Case
[2018] NSWSC 1982
Decision Date
CaseChat Overview and Summary
The Plaintiff, an adult child of the deceased, sought a family provision order under the Succession Act, arguing that the deceased had not made adequate provision for her. The dispute was heard in the Supreme Court of New South Wales. The deceased had six children, and the estate consisted primarily of the deceased’s home, which one son had occupied for many years with a right of residence for as long as he wished to live there or until his death. The estate was to be divided among five of the deceased's children, excluding the Plaintiff, after the son's right of residence ended. The Plaintiff and the deceased had been estranged for over 25 years with no contact. The Plaintiff did not seek immediate provision but rather provision after the son's right of residence ended. The estate was considered reasonably large.
The court had to decide whether a family provision order should be made in favour of the Plaintiff and, if so, the nature and quantum of the provision. The court considered the length of the estrangement, the lack of any contact between the Plaintiff and the deceased, and the competing claims of the beneficiaries. The court found that the Plaintiff's relationship with the deceased had deteriorated significantly, and there was no evidence that the Plaintiff had made any effort to reconnect or maintain contact. The court held that the Plaintiff's claim should be dismissed. The court also considered the offer of compromise served by the Defendant about seven months prior to the hearing date and exercised its discretion to order the Plaintiff to pay the Defendant’s costs, calculated on the indemnity basis, from the day after the date of service of the offer of compromise.