Weisbord v Rodny (No 3) - [2021] NSWSC 458

Supreme Court

New South Wales

Medium Neutral Citation: Weisbord v Rodny (No 3) [2021] NSWSC 458
Hearing dates: 23 March 2021
Decision date: 30 April 2021
Jurisdiction: Equity
Before: Robb J
Decision:
See pars [18], [26] and [28]

Catchwords:
EVIDENCE — Course of evidence — Re-opening case — Where the Court made an order that probate be granted of an informal will under s 8 of the Succession Act 2006 (NSW) — Where the Court consequently did not decide an alternative application for family provision orders under s 59 of the Succession Act — Where the Court of Appeal set aside the order granting probate of the informal will and remitted the proceedings to the trial judge to determine the application for family provision orders — Where the defendant sought orders permitting the parties to serve further updating evidence without formally applying to re-open his case — Where application to serve further updating evidence refused

Legislation Cited:
Succession Act 2006 (NSW)

Cases Cited:
Rodny v Weisbord (2020) 102 NSWLR 403; [2020] NSWCA 22
Weisbord v Rodny; Rodney v Weisbord [2018] NSWSC 1866

Category: Procedural rulings
Parties:
Proceedings 2016 / 225246:
Jeannette Weisbord (first plaintiff/cross defendant)
Alexander Weisbord (second plaintiff)
Joel Weisbord (third plaintiff)
Laurence Rodny (first defendant/cross claimant)

Proceedings 2015 / 324982:
Jeannette Weisbord (plaintiff)
Laurence Rodny (defendant)

Proceedings 2015 / 324966:
Joel Weisbord (plaintiff)
Laurence Rodny (defendant)
Proceedings 2015 / 324977:
Alexander Weisbord (plaintiff)
Laurence Rodny (defendant)
Representation:
Proceedings 2016 / 225246, 2015 / 324982, 2015 / 324966, 2015 / 324977:

Counsel:
V Culkoff (plaintiffs)
L Ellison SC (defendant)
Solicitors:
Kramer & Kramer (plaintiffs)
Norbert Lipton & Co (defendant)

File Number(s): 2016 / 225246, 2015 / 324982, 2015 / 324966, 2015 / 324977

Judgment

On 6 December 2018, I published reasons for judgment in these proceedings: see Weisbord v Rodny; Rodney v Weisbord [2018] NSWSC 1866.
The proceedings raised two principal issues. The first was whether the Court should make an order under s 8 of the Succession Act 2006 (NSW) that a particular document formed the will of Mrs Rose Rodny, who was the mother of the first plaintiff and the defendant, notwithstanding that the document had not been executed in accordance with Part 2.1 of the Succession Act. The second issue was whether the Court should make further provision for the plaintiffs out of the estate of Mrs Rodney under s 59 of the Succession Act.
In the judgment, I found in favour of the plaintiffs on the first issue. The consequence was that the will of Mrs Rodney made provision for the plaintiffs that obviated their need to pursue the application for further family provision. In their submissions, the plaintiffs had specifically stated that their applications for family provision orders were in the alternative to their claim based upon s 8 of the Succession Act.
As I found in favour of the plaintiffs on the first issue, I did not determine the second issue. It is often convenient where…

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

Case: [2021] NSWSC 458
Decision Date: 30 April 2021

CaseChat Overview and Summary

In the matter of Weisbord v Rodny, the dispute involved the interpretation and application of the Succession Act 2006 (NSW) concerning the validity of a will and the subsequent application for family provision orders. The case was heard in the Supreme Court of New South Wales and subsequently appealed to the Court of Appeal. The trial judge had granted probate of an informal will under section 8 of the Succession Act but did not decide on the alternative application for family provision orders under section 59. Upon appeal, the Court of Appeal set aside the order granting probate and remitted the matter back to the trial judge to determine the family provision application. In this context, the defendant sought to serve further updating evidence concerning the financial circumstances of the parties without formally applying to re-open his case.

The legal issues before the court centred on the procedural aspects of serving additional evidence and the appropriate circumstances in which a party may update the court on financial matters without formally re-opening their case. Specifically, the court had to consider whether the defendant could submit further evidence without formally applying to re-open his case, and if such evidence could be considered in the context of the family provision application. The court was tasked with balancing the procedural fairness of allowing additional evidence against the established rules of court procedure and the need to avoid undue delay or prejudice to the other party.

The court determined that the defendant's application to serve further updating evidence without formally re-opening his case was refused. The reasoning was grounded in the procedural rules and the principle of fairness to the other party. The court emphasised that while it was important to ensure that all relevant evidence was before the court, such evidence must be introduced in accordance with established procedures. Allowing the submission of additional evidence without a formal application to re-open the case could lead to an unfair advantage and potential prejudice to the other party. The court also noted the importance of maintaining the integrity of the legal process and adhering to the rules designed to ensure a fair and orderly trial.

In light of the above, the court declined to make the orders sought by the defendant. The court's decision underscored the necessity of following proper procedural steps when seeking to introduce new evidence and the importance of maintaining the balance between procedural fairness and the avoidance of undue delay.

Orders