Haertsch v Whiteway [2020] NSWCA 133

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Haertsch v Whiteway [2020] NSWCA 133 Hearing dates: 20 May 2020 Decision date: 03 July 2020 Before: Macfarlan JA; Meagher JA; Leeming JA Decision: (1) Allow appeal. (2) Dismiss cross-appeal. (3) Set aside orders 1, 2, 3, 4, 5, 6 and 7 made on 11 November 2016. (4) Dismiss the amended statement of claim. (5) Direct that if the parties cannot agree on the costs orders to be made in relation to the proceedings below and in this Court, they are to exchange and lodge with Meagher JA's Associate within 14 days of the date of these orders written submissions as to the costs orders sought (those submissions not to exceed 5 pages). Those questions as to costs will then be dealt with on the papers. Catchwords: SUCCESSION – Family provision – Notional estate – Where property of the estate distributed – Where primary beneficiary deceased and her estate held by executor – Where notional estate order made by primary judge – Whether estate of deceased beneficiary able to be designated notional estate under Family Provision Act 1982 (NSW), s 24 – Appeal allowed. SUCCESSION – Family provision – Claim by adult child – Proceedings not commenced within time – Where application made 12 and a half years out of time – Where primary beneficiary of testator now deceased – Where general assurances of a testamentary benefit given to applicant by deceased beneficiary – Whether sufficient cause shown to extend time – Whether primary judge erred in disregarding prejudice to deceased beneficiary and her estate in exercising discretion to extend time – Appeal allowed. Legislation Cited: Family Provision Act 1982 (NSW), ss 6(4), 6(5), 7, 8, 9, 16(1)(b), 16(2), 16(3)(b), 21, 22, 23, 24, 25, 27(2) Interpretation Act 1987 (NSW) Real Property Act 1900 (NSW), s 93 Succession Act 2006 (NSW), ss 57, 58, 59 Testator's Family Maintenance and Guardianship of Infants Act 1916 (NSW), ss 5(1), 5(2A) Cases Cited: Commissioner of Stamp Duties (Q) v Livingston (1964) 112 CLR 12; [1964] HCA 54 Davison v Staley (unreported, NSWSC, 21 August 1986) Durham v Durham (2011) 80 NSWLR 335; [2011] NSWCA 62 Easterbrook v Younger (1977) 136 CLR 308; [1977] HCA 16 Ernst v Mowbray [2004] NSWSC 1140 House v The King (1936) 55 CLR 499; [1936] HCA 40 Kavalee v Burbidge (1998) 43 NSWLR 422 Light v Anderson [1992] NSWCA 136 Phillips v James (2014) 85 NSWLR 619; [2014] NSWCA 4 Prince v Argue [2002] NSWSC 1217 Public Trustee v Kidd [1931] NZLR 1 Richardson v Reardon [2006] NSWSC 1252 Stern v Sekers [2010] NSWSC 59 Vasconelos v Bonetig [2011] NSWSC 1029 White v Barron (1980) 144 CLR 431; [1980] HCA 14 Category: Principal judgment Parties: Adrian Haertsch (as executor of the estate of Stephne Whiteway) (first appellant) Adrian Haertsch (as executor of the estate of Donald Whiteway) (second appellant) Elizabeth Whiteway (first respondent) Jane French (second respondent) Representation: Counsel: C Birch SC and J Brown (appellants) J Mitchell (first respondent)