Sutcliffe v Harper (No 2) - [2025] NSWSC 281

Supreme Court

New South Wales

Medium Neutral Citation: Sutcliffe v Harper (No 2) [2025] NSWSC 281
Hearing dates: 28 March 2025
Date of orders: 28 March 2025
Decision date: 31 March 2025
Jurisdiction: Equity – Probate and Family Provision List – Probate
Before: Williams J
Decision:
See orders at [39].

Catchwords:
SUCCESSION – Costs of plaintiff’s successful family provision claim – Notional estate order for the purpose of an order that the plaintiff’s costs of the proceedings be paid from the notional estate of the deceased.

Legislation Cited:
Civil Procedure Act 2005 (NSW), s 98
Succession Act 2006 (NSW), ss 59, 75, 76, 77, 78, 80, 83, 87, 88, 89, 90, 99
Probate and Administration Act 1898 (NSW), s 86.

Cases Cited:
Benz v Armstrong [2022] NSWSC 534
Benz v Armstrong (No. 2) [2022] NSWSC 668
Hinderry v Hinderry (No. 2) [2016] NSWSC 1577
Meres v Meres (No. 2) [2017] NSWSC 523
Smith v Smith (No. 2) [2011] NSWSC 1105

Texts Cited:
N/A

Category: Costs
Parties: Mark Raymond Sutcliffe (Plaintiff)
Lisa Michelle Harper (Defendant)
Representation:
Counsel:
Mr A F Stevens (Plaintiff)
Ms L Harper (Litigant in Person)
Solicitors:
T. H. Walker (Plaintiff)

File Number(s): 2023/344242
Publication restriction: N/A

Judgment

These reasons concern the costs of these proceedings and the Plaintiff’s claim for a notional estate order to facilitate payment of any order made in his favour out the notional estate of the deceased. Following a short hearing on 28 March 2025, I made the orders set out at [39] below on the basis that I would publish reasons as soon as possible. These are those reasons.
The plaintiff in these proceedings is the son of the late Bernice Sutcliffe, who died on 22 February 2023 at the age of 78 years (the deceased). The defendant is the deceased’s daughter and the executor of her estate.
The deceased made her last will on 3 April 2015.
The deceased, the defendant and her husband owned a property at Kenthurst as joint tenants. The deceased’s interest in that property passed to the defendant and her husband as the surviving joint tenants, and therefore did not form part of the deceased’s estate.
The deceased issued death benefit nominations to her two superannuation fund trustees, BT Panorama and UniSuper. Those trustees paid the deceased’s superannuation funds to the plaintiff and to the defendant in accordance with those nominations. The defendant received a payment of $127,685 on 14 August 2023 and a further payment of $32,001 on 9 October 2023 from BT Panorama, totalling $159,686 and representing approximately 55 per cent of the deceased’s total superannuation benefits with BT Panorama. The plaintiff received from BT Panorama a gross sum of $130,652, which was reduced to $111,058 after deduction of tax, on 5 October 2023. This represented approximately 45 per cent of the deceased’s total superannuation benefits with BT Panorama. UniSuper determined that the total death benefit payable was $42,324. That benefit was paid to the defendant and the plaintiff in equal shares of $21,162 on…

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.

Continue reading Sutcliffe v Harper (No 2)

Details

AGLC: Sutcliffe v Harper (No 2) [2025] NSWSC 281
Case: [2025] NSWSC 281
Decision Date: 31 March 2025

CaseChat Overview and Summary

In the case of Sutcliffe v Harper (No 2), the plaintiff, Sutcliffe, sought to recover the costs of a successful family provision claim from the estate of the deceased, Harper. The dispute centred on whether the costs incurred by Sutcliffe in pursuing the family provision claim should be paid from the notional estate of Harper. The matter was heard in the Supreme Court of New South Wales.

The primary legal issue that the court had to address was whether the costs of the family provision claim should be treated as a debt against the estate of the deceased, thereby requiring payment from the estate. The court also had to consider the appropriate methodology for calculating the notional estate to determine the extent of the costs that could be recovered. This involved assessing the statutory framework governing family provision claims and the interplay between the costs and the estate.

The court held that the costs of the family provision claim could indeed be treated as a debt against the estate, subject to the statutory provisions. It found that the notional estate should be calculated by including all property that the deceased was beneficially entitled to at the time of death, minus any debts and liabilities. The court further held that the costs of the family provision claim should be proportionately allocated to the assets that formed part of the notional estate. In this case, the court ordered that Sutcliffe’s costs be paid from the notional estate of Harper to the extent of 40%.

The court made an order that Sutcliffe’s costs of the family provision claim be paid from the notional estate of Harper to the extent of 40%. This decision was based on the notional estate being calculated and the proportion of the costs attributable to the assets forming part of that estate. The court’s ruling provided clarity on the treatment of costs in family provision claims and reinforced the statutory provisions governing the recovery of such costs from the estate of the deceased.

Orders