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
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).
In my view the fact that Sarah, the child of the…
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.
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Details
AGLC
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.]