New South Wales
Court of Appeal
CITATION: Tchadovitch v Tchadovitch [2010] NSWCA 316 HEARING DATE(S): 19 October 2010
JUDGMENT DATE:
24 November 2010JUDGMENT OF: Allsop P at 1; Campbell JA at 6; Young JA at 94 DECISION: (1) Appeal dismissed with costs.
(2) Grant leave to cross-appeal, and dismiss the cross-appeal with cost.
(3) Appellants’ Notice of Motion filed 30 September 2010 dismissed with costs.
[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: SUCCESSION – Family provision and maintenance – principles upon which relief granted – appeal relating to quantum of award – process for calculating adequate provision – use of actuarial evidence in determining appropriate quantum of fund to secure an income for deceased’s wife – found that it was within the discretion of the trial judge to take into account expert evidence when parties both presumed such evidence – discussion of extent to which use of expert and actuarial evidence helpful in Family Provision Act matters – SUCCESSION – Family provision and maintenance – principles upon which relief granted – relevance of Todorovic v Waller to Family Provision Act matters – failure of trial judge to derive lump sum relying only on figures yielded by 3% discount tables not erroneous – SUCCESSION – Family provision and maintenance – obligation of executors to provide relevant information – PROCEDURE – costs – departing from the general rule – when indemnity costs available – whether rejection of Calderbank offer lower than final award sufficient to justify costs order on indemnity basis – rules relating to Calderbank different to rules relating to offers of compromise in UCPR – indemnity costs not available when Appellants did not act unreasonably by rejecting the offer – rejection reasonable when likely range of outcomes not clear at the time that the offer was made LEGISLATION CITED: Civil Liability Act 2002
Evidence Act 1995
Family Provision Act 1982
Succession Act 2006
Supreme Court Act 1970CATEGORY: Principal judgment CASES CITED: Armory v Delamirie (1722) 1 Stra 505; 93 ER 664
Dijkhuijs (formerly Coney) v Barclay (1988) 13 NSWLR 639
House v The King (1936) 55 CLR 499
In the Will of Lanfear (Deceased) (1940) 57 WN (NSW) 181
Jones v Dunkel (1959) 101 CLR 298
Lloyd Williams v Mayfield [2005] NSWCA 189; (2005) 63 NSWLR 1
Maviglia v Maviglia [1999] NSWCA 188
Mayfield v Lloyd Williams [2004] NSWSC 419
Multicon Engineering Pty Ltd v Federal Airports Corp (1996) 138 ALR 425
Municipal Council v Green [2004] NSWCA 341
Sherborne Estate (No 2); Vanvalen v Neaves [2005] NSWSC 1003; (2005) 65 NSWLR 268
Singer v Berghouse (1994) 181 CLR 201
Stern v Sekers [2010] NSWSC…
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- AGLC
- Tchadovitch v Tchadovitch [2010] NSWCA 316
- Case
- [2010] NSWCA 316
- Decision Date
CaseChat Overview and Summary
The appeal concerned a family provision claim brought by the respondent wife against the estate of her deceased husband, Mr. Tchadovitch. The appellants were the executors of the estate. The primary dispute revolved around the quantum of provision to be made for the respondent from the estate. The matter was heard in the Court of Appeal of New South Wales.
The court was required to determine whether the trial judge had erred in the process of calculating adequate provision for the respondent. Specifically, the court considered the use of actuarial evidence in determining the appropriate lump sum to secure an income for the respondent, and the relevance of the principles established in *Todorovic v Waller* to family provision matters. The court also had to consider whether the trial judge’s failure to derive a lump sum solely from figures yielded by 3% discount tables constituted an error. Furthermore, the court addressed the obligations of executors to provide relevant information and the principles governing costs orders, particularly in relation to the rejection of a *Calderbank* offer.
The Court of Appeal held that it was within the trial judge’s discretion to take into account expert and actuarial evidence, especially when both parties had presumed such evidence would be used. The court found that the use of such evidence could be helpful in family provision matters. The court affirmed that the trial judge was not erroneous in failing to rely exclusively on figures derived from 3% discount tables. Regarding costs, the court determined that indemnity costs were not available because the appellants had not acted unreasonably in rejecting the *Calderbank* offer, as the likely range of outcomes was not clear at the time of rejection.
The appeal was dismissed with costs. Leave to cross-appeal was granted, but the cross-appeal was also dismissed with costs. The appellants’ Notice of Motion filed on 30 September 2010 was dismissed with costs.
The court was required to determine whether the trial judge had erred in the process of calculating adequate provision for the respondent. Specifically, the court considered the use of actuarial evidence in determining the appropriate lump sum to secure an income for the respondent, and the relevance of the principles established in *Todorovic v Waller* to family provision matters. The court also had to consider whether the trial judge’s failure to derive a lump sum solely from figures yielded by 3% discount tables constituted an error. Furthermore, the court addressed the obligations of executors to provide relevant information and the principles governing costs orders, particularly in relation to the rejection of a *Calderbank* offer.
The Court of Appeal held that it was within the trial judge’s discretion to take into account expert and actuarial evidence, especially when both parties had presumed such evidence would be used. The court found that the use of such evidence could be helpful in family provision matters. The court affirmed that the trial judge was not erroneous in failing to rely exclusively on figures derived from 3% discount tables. Regarding costs, the court determined that indemnity costs were not available because the appellants had not acted unreasonably in rejecting the *Calderbank* offer, as the likely range of outcomes was not clear at the time of rejection.
The appeal was dismissed with costs. Leave to cross-appeal was granted, but the cross-appeal was also dismissed with costs. The appellants’ Notice of Motion filed on 30 September 2010 was dismissed with costs.
Orders
Orders of the court
(1) Appeal dismissed with costs.
(2) Grant leave to cross-appeal, and dismiss the cross-appeal with cost.
(3) Appellants’ Notice of Motion filed 30 September 2010 dismissed with costs.
[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.]
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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