Verzar v Verzar

Case [2014] NSWCA 45


Court of Appeal

New South Wales

Case Title: Verzar v Verzar
Medium Neutral Citation: [2014] NSWCA 45
Hearing Date(s): 22 November 2013
Decision Date: 11 March 2014
Before: Macfarlan JA at [1];
Meagher JA at [3];
Barrett JA at [60]
Decision:

Appeal dismissed with costs.

[Note: 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 - appeal from determination of applications under ss 58(2) and 59(1) of Succession Act 2006 - contest between respondent, deceased's second wife, and appellant, deceased's adult son - child of deceased and second wife dependent on second wife - whether primary judge erred in extending time for making of respondent's application for family provision order - whether primary judge erred in being satisfied that adequate provision not made for respondent - application of s 99 of Succession Act 2006 - whether primary judge erred in ordering that appellant's and respondent's costs be borne by appellant and paid out of his interest in the deceased's estate
Legislation Cited: Succession Act 2006, ss 58(2), 59(1)(c)
Testator's Family Maintenance and Guardianship of Infants Act 1916
Cases Cited: Davison v Staley (unreported, Supreme Court of NSW, 21 August 1996)
De Winter v Johnstone [1995] NSWCA 120
Durham v Durham [2011] NSWCA 62; 80 NSWLR 335
Foley v Ellis [2008] NSWCA 288
House v The King [1936] HCA 40; 55 CLR 499
Mayfield v Lloyd-Williams [2004] NSWSC 419
McCosker v McCosker [1957] HCA 82; 97 CLR 566
Re Dun (Deceased) (1956) 56 SR (NSW) 181
Singer v Berghouse [1994] HCA 40; 181 CLR 201
Tobin v Ezekiel [2012] NSWCA 285; 83 NSWLR 75
Vigolo v Bostin [2005] HCA 11; 221 CLR 191
Category: Principal judgment
Parties: Thomas John Verzar (Appellant)
Susan Verzar (Respondent)
Representation
- Counsel: Counsel:
A R Lakeman, M McMahon (Appellant)
R D Wilson SC (Respondent)
- Solicitors: Solicitors:
Denes Ebner Lawyers (Appellant)
Teece Hodgson & Ward (Respondent)
File Number(s): 2012/400251
Decision Under Appeal
- Court / Tribunal: Supreme Court
- Before: Lindsay J
- Date of Decision:  16 November 2012
- Citation: Verzar v Verzar [2012] NSWSC 1380
- Court File Number(s): 2011/88252

JUDGMENT

  1. MACFARLAN JA: I agree with Meagher JA. As his Honour concludes, the appellant was unable to surmount the considerable hurdle placed in his path by the principles stated in House v R [1936] HCA 40; 55 CLR 499 which are applicable to appellate review of the primary judge's decision. In particular, the appellant was not able to establish that the decision below was "unreasonable or plainly unjust" (House at 505).

  2. In my view the fact that Sarah, the child of the…

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Verzar v Verzar [2014] NSWCA 45
Case
[2014] NSWCA 45
Decision Date

CaseChat Overview and Summary

The appeal concerned a contest between the deceased's second wife, the respondent, and the deceased's adult son, the appellant, regarding applications made under the *Succession Act 2006* (NSW). The respondent, who had a child dependent on her, sought a family provision order. The primary judge had extended the time for the respondent to make her application and had found that adequate provision had not been made for her. The appeal was heard by Macfarlan, Meagher and Barrett JJA of the Court of Appeal of New South Wales.

The legal issues before the Court of Appeal were whether the primary judge had erred in extending the time for the respondent's application for a family provision order, whether the primary judge had erred in being satisfied that adequate provision had not been made for the respondent, and whether the primary judge had erred in ordering that the costs of both the appellant and the respondent be borne by the appellant and paid out of his interest in the deceased's estate, pursuant to section 99 of the *Succession Act 2006*.

The Court of Appeal dismissed the appeal. The reasoning of the primary judge on the question of adequate provision was upheld, and the primary judge's decision to extend time was also affirmed. The Court found no error in the primary judge's orders regarding costs. The appeal was dismissed with costs.

Orders

Orders of the court

Appeal dismissed with costs.

[Note: 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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