Sgro v Thompson

Case [2017] NSWCA 326


Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Sgro v Thompson [2017] NSWCA 326
Hearing dates:20 September 2017
Decision date: 15 December 2017
Before: McColl JA at [1];
Payne JA at [2];
White JA at [8]
Decision:

1. Appeal allowed.
2. Set aside the orders (a), (b) and (c) made on 21 December 2016.
3. In their place, order that the summons be dismissed.
4. Order that the respondent pay the appellant’s costs of the appeal and the proceedings below.
5. Grant the respondent a certificate pursuant to the Suitors’ Fund Act 1912 (NSW) in respect of the costs of the appeal.

Catchwords: SUCCESSION — family provision — appeals — deceased left estate to one of two daughters – both daughters were loving and attentive children – respondent had financial need – respondent had received early inheritance - whether primary judge erred in ordering that provision be made under s 59 of Succession Act 2006 (NSW) in favour of respondent — whether appellate intervention warranted — consideration of correctness of “two-stage” approach in application of s 59 of the Succession Act 2006 (NSW) — whether primary judge erred in assessment of appellant’s claim on estate - whether primary judge failed to give proper consideration to deceased’s assessment of what was the appropriate testamentary disposition
Legislation Cited: Administration and Probate Act 1958 (Vic)
Family Provision Act 1982 (NSW), s 7 and s 9(2)
Succession Act 2006 (NSW), Ch 3
Cases Cited: Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308
Poletti v Jones [2015] NSWCA 107; (2015) 324 ALR 641
Underwood v Gaudron [2015] NSWCA 269
Burke v Burke [2015] NSWCA 195
Andrew v Andrew [2011] NSWSC 115
Bates v Cooke [2015] NSWCA 278
Boettcher v Driscoll (2014) 119 SASR 523; [2014] SASC 86
Chan v Chan [2016] NSWCA 222
Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392
de Angelis v de Angelis [2003] VSC 432
Golosky v Golosky [1993] NSWCA 111; BC9302134
Hunter v Hunter (1987) 8 NSWLR 573
Jones (a pseudonym) v Smith (a pseudonym) [2016] VSCA 178
Lloyd-Williams v Mayfield (2005) 63 NSWLR 1; [2005] NSWCA 189
McCosker v McCosker (1957) 97 CLR 566; [1957] HCA 82
McKenzie v Topp [2004] VSC 90
Phillips v James (2014) 85 NSWLR 619; [2014] NSWCA 4
Poletti v Jones [2015] NSWCA 107
Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; [1962] HCA 19
Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40
Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522
Smith v Johnson [2015] NSWCA 297
Stott v Cook (1960) 33 ALJR 447
Taylor v Farrugia [2009] NSWSC 801
Thompson v Sgro [2016] NSWSC 1869
Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11
Texts Cited: A Gray, “Family Provision Applications: A Critique” (2017) 91 ALJ 750
Category:Principal judgment
Parties: Carmela Sgro (Appellant)
Rosa Thompson (Respondent)
Representation:

Counsel:

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Details
AGLC
Sgro v Thompson [2017] NSWCA 326
Case
[2017] NSWCA 326
Decision Date

CaseChat Overview and Summary

The appeal concerned a dispute over the deceased's estate, brought by one daughter (the respondent) against the other daughter (the appellant), who was the sole beneficiary under the deceased's will. The primary judge had ordered that provision be made from the estate for the respondent, who was described as a loving and attentive child but had significant financial need, having received an early inheritance. The appellant argued that the primary judge had erred in making this order. The appeal was heard by McColl, Payne and White JJA of the Court of Appeal of New South Wales.

The central legal issues before the Court of Appeal were whether the primary judge had erred in ordering provision for the respondent under section 59 of the *Succession Act 2006* (NSW), whether appellate intervention was warranted, and whether the primary judge had correctly applied the "two-stage" approach in assessing the respondent's claim. The appellant also contended that the primary judge had failed to give proper consideration to the deceased's own assessment of what constituted an appropriate testamentary disposition.

The Court of Appeal found that the primary judge had erred in their assessment. While acknowledging the respondent's financial need and her status as a loving child, the Court determined that the deceased's testamentary intentions, as evidenced by the will, were entitled to significant weight. The Court concluded that the deceased had made a considered decision regarding the distribution of her estate, and that the primary judge had not given sufficient regard to this. Consequently, the Court found that the threshold for making an order for provision had not been met.

The appeal was allowed, and the orders made by the primary judge were set aside. The summons for provision was dismissed, and the respondent was ordered to pay the appellant's costs of both the appeal and the proceedings below. The respondent was granted a certificate under the *Suitors’ Fund Act 1912* (NSW) in respect of the costs of the appeal.

Orders

Orders of the court

1. Appeal allowed.

2. Set aside the orders (a), (b) and (c) made on 21 December 2016.

3. In their place, order that the summons be dismissed.

4. Order that the respondent pay the appellant’s costs of the appeal and the proceedings below.

5. Grant the respondent a certificate pursuant to the Suitors’ Fund Act 1912 (NSW) in respect of the costs of the appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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