Smith v Johnson

Case [2015] NSWCA 297

Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Smith v Johnson [2015] NSWCA 297
Hearing dates:26 August 2015
Decision date: 30 September 2015
Before: Macfarlan JA at [1];
Ward JA at [2];
Sackville AJA at [6]
Decision:

1. Appeal allowed
2. Set aside Orders 1 and 1A made by Kunc J on 9 December 2014.
3. In lieu of Orders 1 and 1A, order that the Plaintiff’s summons be dismissed.
4. The respondent pay the appellant’s costs of the appeal.

Catchwords: SUCCESSION – family provision order – adult child (claimant) claims further provision from moderately substantial estate of his mother – claimant dependent on parents – two siblings relatively well off - interim distribution under will offset against costs owed by the claimant to the estate due to intra-family litigation – whether primary judge erred in finding that claimant’s conduct in intra-family litigation did not preclude a family provision order – whether claimant’s conduct was malicious or in bad faith - whether the claimant’s financial needs included a provision for a two bedroom apartment – whether primary Judge’s discretion miscarried
Legislation Cited: Family Provision Act 1982 (NSW)
Succession Act 2006 (NSW), ss 57, 59, 60; Ch 3, Pt 3.2
Cases Cited: Andrew v Andrew [2012] NSWCA 308; 81 NSWLR 656
Bates v Cook [2015] NSWCA 278
Bowditch v NSW Trustee and Guardian [2012] NSWSC 275
Burke v Burke [2015] NSWCA 195
Chapple v Wilcox [2014] NSWCA 392; 87 NSWLR 646
Johnson by her tutor Karen Smith v Johnson [2009] NSWSC 503
Johnson v NSW Guardianship Tribunal [2009] NSWSC 664
Johnson v Smith [2010] NSWCA 306
Johnson v Smith [2010] NSWSC 125
Johnson v Smith [2011] HCASL 53
Johnson v Smith [2014] NSWSC 1682
Mulcahy v Weldon [2002] NSWCA 206
Re Will of Jane (No 2) [2011] NSWSC 883
Re Will of Jane [2011] NSWSC 624
Smith v Johnson [2008] NSWSC 923
Underwood v Gaudron [2015] NSWCA 269
Category:Principal judgment
Parties: Karen Elisabeth Smith (First Appellant)
David Charles Johnson (Second Appellant)
Andrew Robert Stuart Johnson (Respondent)
Representation:

Counsel:
L Ellison SC / Ms H Bennett (First and Second Appellants)
CM Lawrence (Respondent)

  Solicitors:
Bognar Legal (First and Second Appellants)
Mark Rahme & Associates (Respondent)
File Number(s):2014/364390
 Decision under appeal 
Court or tribunal:
Supreme Court of New South Wales
Jurisdiction:
Equity Division
Citation:
[2014] NSWSC 1682
Date of Decision:
27 November 2014
Before:
Kunc J
File Number(s):
2013/274991

Judgment

  1. MACFARLAN JA:    I agree with Sackville AJA.

  2. WARD JA: I agree with Sackville AJA and with the orders his Honour has proposed.

  3. As Sackville AJA has concluded, the evidence did not establish a need for a two bedroom apartment and hence there was a material error of fact that vitiated the determination made by the primary judge for the award of provision for Andrew in lieu of that provided under his mother’s will.

  4. In the re-exercise of the discretionary judgment required to be undertaken by this Court, I agree, for the reasons that Sackville AJA…

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Details
AGLC
Smith v Johnson [2015] NSWCA 297
Case
[2015] NSWCA 297
Decision Date

CaseChat Overview and Summary

The Court of Appeal of New South Wales heard an appeal concerning a family provision claim brought by an adult son against his mother's moderately substantial estate. The claimant, who had been dependent on his parents, sought further provision from the estate, while his siblings were described as relatively well off. An interim distribution made to the claimant under the will had been offset against costs he owed to the estate arising from prior intra-family litigation.

The central legal issues before the Court of Appeal were whether the primary judge had erred in finding that the claimant's conduct in the previous litigation did not preclude him from receiving a family provision order, and whether that conduct could be characterised as malicious or in bad faith. Further, the court considered whether the primary judge's assessment of the claimant's financial needs, specifically the inclusion of a provision for a two-bedroom apartment, was appropriate, and whether the primary judge's discretion had miscarried in making the family provision order.

The Court of Appeal found that the primary judge had erred in their assessment. The court determined that the claimant's conduct in the intra-family litigation was of such a nature as to disentitle him to a family provision order. Consequently, the court allowed the appeal, setting aside the orders made by the primary judge and dismissing the plaintiff's summons. The respondent was ordered to pay the appellant's costs of the appeal.

Orders

Orders of the court

1. Appeal allowed

2. Set aside Orders 1 and 1A made by Kunc J on 9 December 2014.

3. In lieu of Orders 1 and 1A, order that the Plaintiff’s summons be dismissed.

4. The respondent pay the appellant’s 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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