(2) Applicant pay respondent's costs of the application.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:
APPEAL - application for leave to appeal from two decisions - each decision involved exercise of discretion or discretionary judgment - neither arguably attended by error of kind described in House v The King (1936) 55 CLR 499 - leave to appeal refused
Aliza Alice Sassoon (Applicant) Adrian Rose (Executor of the estate of I J Beder) (Respondent)
Representation
- Counsel:
Counsel: A A Sassoon (in person) (Applicant) T Bors (Respondent)
- Solicitors:
Solicitors: Denes Ebner Lawyers (Respondent)
File Number(s):
2013/7578
Decision Under Appeal
- Court / Tribunal:
Supreme Court
- Before:
White JMacready AsJ
- Citation:
Sassoon v Rose (Supreme Court of New South Wales, White J, 15 November 2012, unreported)Aliza Alice Sassoon v Adrian Rose[2012] NSWSC 1554
- Court File Number(s):
2011/82496
JUDGMENT
MEAGHER JA: The applicant, Ms Aliza Alice Sassoon, seeks leave to appeal from two decisions in proceedings brought by her against Mr Adrian Rose as executor of the estate of her former husband, Isaac Joseph Beder (the deceased), who died on 24 August 2009. Those proceedings included an application by Ms Sassoon for provision under the Family Provision Act 1982 or the Succession Act 2006: see Sassoon v Rose [2011] NSWSC 378 (Brereton J) at [8] and Sassoon v Rose (Supreme Court of New South Wales, White J, 15 November 2012, unreported) at [3].
Ms Sassoon's summons making that application was filed on 14 March 2011, more than 12 months after the deceased's death. For that reason she required an extension of the time for making it: see s…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Sassoon v Rose [2013] NSWCA 220
Case
[2013] NSWCA 220
Decision Date
CaseChat Overview and Summary
The applicant, Sassoon, sought leave to appeal from two decisions made by the primary court. The respondent was Rose. The dispute concerned the exercise of discretion or discretionary judgment in each of those decisions.
The central legal issue before the Court of Appeal was whether the primary court's decisions were attended by error of the kind described in *House v The King* (1936) 55 CLR 499. This involved assessing whether the discretion had been exercised arbitrarily, capriciously, or upon wrong principles, or if it had failed to take into account relevant considerations or taken into account irrelevant ones.
Meagher and Gleeson JJA found that neither of the decisions under appeal arguably exhibited the type of error required to grant leave. Consequently, the Court concluded that the threshold for interfering with the exercise of discretion had not been met.
The application for leave to appeal was dismissed, and the applicant was ordered to pay the respondent's costs of the application.
Orders
Orders of the court
(1) Application for leave to appeal dismissed.
(2) Applicant pay respondent's costs of the application.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]