Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Sun v Chapman [2022] NSWCA 132 Hearing dates: 11 March 2022; written submissions 1, 8 and 14 April 2022 Decision date: 26 July 2022 Before: Leeming JA at [1];
White JA at [14];
Brereton JA at [187]Decision: (1) Grant leave to the appellant to rely upon further evidence as set out in the affidavit of Mitchell Broom dated 19 January 2022.
(2) Grant leave to the respondent to rely upon further evidence as set out in the affidavit of Linley Li dated 22 February 2022.
(3) Grant leave to the appellant to rely upon the affidavits of Mitchell Broom sworn 9 March 2022 and 10 March 2022.
(4) The costs of the notices of motion and the application to adduce the evidence of Mitchell Broom of 9 and 10 March 2022 be costs in the appeal.
(5) Appeal allowed.
(6) Cross-appeal dismissed.
(7) Set aside the orders of the primary judge of 4 August and 3 September 2021.
(8) In lieu thereof:
(a) declare that at the time of the death of the late Robin Richard Chapman (“the deceased”), who died on 2 February 2019, the appellant was living with the deceased in a de facto relationship;
(b) order that provision be made out of the deceased’s estate in favour of the appellant in the sum of $555,000.
(9) Order that the burden of the order for provision referred to in order (8)(b) be borne by the beneficiaries of the deceased’s estate set out in the annexure to the reasons of the primary judge according to the proportions in which they are entitled to share in the proceeds of sale of the Seaforth property formerly owned by the deceased.
(10) Order that the respondent pay the appellant’s costs of the proceedings below and of the appeal and cross-appeal on the ordinary basis and be indemnified out of the deceased’s estate in respect of that liability.
(11) Order that the appellant promptly notify the Department of Veterans’ Affairs of the orders and reasons of this court and apply for the reinstatement of the war widow pension and gold card formerly provided to her.
(12) Order that the respondent be restrained from distributing the estate unless and until the respondent is advised by the Department of Veterans’ Affairs, or the appellant, or the appellant’s solicitor, that the appellant’s pension and gold card have been reinstated, provided that this order does not prevent the respondent from:
(a) paying the appellant the legacy the subject of the order for provision in order (8)(b) or costs payable to the appellant pursuant to order (10), or administration expenses incurred by the respondent including his costs and disbursements of these proceedings;
(b) distributing the estate to the beneficiaries provided at least $400,000 is retained; or
(c) otherwise distributing the estate with the written consent of the appellant or her solicitor.
(13) Liberty to either party to apply to a single Judge of Appeal on reasonable…
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- AGLC
- Sun v Chapman [2022] NSWCA 132
- Case
- [2022] NSWCA 132
- Decision Date
CaseChat Overview and Summary
The Court of Appeal allowed the appeal and dismissed the cross-appeal, setting aside the orders of the primary judge. The Court of Appeal found that the appellant was, at the time of the deceased's death, living with him in a de facto relationship. Consequently, the Court ordered that provision be made out of the deceased's estate in favour of the appellant in the sum of $555,000. This provision was to be borne by the beneficiaries of the estate in proportion to their entitlement to the proceeds of sale of a specific property. The respondent was ordered to pay the appellant's costs of the proceedings below and the appeal, to be indemnified out of the estate. Further orders were made concerning the appellant's war widow pension and gold card, and the respondent was restrained from distributing the estate pending the reinstatement of these benefits, with specific exceptions.
Orders
Orders of the court
(1) Grant leave to the appellant to rely upon further evidence as set out in the affidavit of Mitchell Broom dated 19 January 2022.
(2) Grant leave to the respondent to rely upon further evidence as set out in the affidavit of Linley Li dated 22 February 2022.
(3) Grant leave to the appellant to rely upon the affidavits of Mitchell Broom sworn 9 March 2022 and 10 March 2022.
(4) The costs of the notices of motion and the application to adduce the evidence of Mitchell Broom of 9 and 10 March 2022 be costs in the appeal.
(5) Appeal allowed.
(6) Cross-appeal dismissed.
(7) Set aside the orders of the primary judge of 4 August and 3 September 2021.
(8) In lieu thereof:
(a) declare that at the time of the death of the late Robin Richard Chapman (“the deceased”), who died on 2 February 2019, the appellant was living with the deceased in a de facto relationship;
(b) order that provision be made out of the deceased’s estate in favour of the appellant in the sum of $555,000.
(9) Order that the burden of the order for provision referred to in order (8)(b) be borne by the beneficiaries of the deceased’s estate set out in the annexure to the reasons of the primary judge according to the proportions in which they are entitled to share in the proceeds of sale of the Seaforth property formerly owned by the deceased.
(10) Order that the respondent pay the appellant’s costs of the proceedings below and of the appeal and cross-appeal on the ordinary basis and be indemnified out of the deceased’s estate in respect of that liability.
(11) Order that the appellant promptly notify the Department of Veterans’ Affairs of the orders and reasons of this court and apply for the reinstatement of the war widow pension and gold card formerly provided to her.
(12) Order that the respondent be restrained from distributing the estate unless and until the respondent is advised by the Department of Veterans’ Affairs, or the appellant, or the appellant’s solicitor, that the appellant’s pension and gold card have been reinstated, provided that this order does not prevent the respondent from:
(a) paying the appellant the legacy the subject of the order for provision in order (8)(b) or costs payable to the appellant pursuant to order (10), or administration expenses incurred by the respondent including his costs and disbursements of these proceedings;
(b) distributing the estate to the beneficiaries provided at least $400,000 is retained; or
(c) otherwise distributing the estate with the written consent of the appellant or her solicitor.
(13) Liberty to either party to apply to a single Judge of Appeal on reasonable notice in relation to order (12).
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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