Bassett v Bassett [2021] NSWCA 320

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Bassett v Bassett [2021] NSWCA 320 Hearing dates: 25 October 2021 Date of orders: 16 December 2021 Decision date: 16 December 2021 Before: Bell P; Leeming JA; Payne JA Decision: 1. Appeal allowed with costs other than with respect to Ground 11. 2. Merilyn and Bruce to pay Geoff's costs in relation to Ground 11. 3. Set aside order 3 made on 12 March 2021 and orders 1(ii), (iii) and (iv), 2(i) and (iii) and 3(i) and (iii) made on 27 April 2021 and, in lieu thereof, order that: (a) Geoff's family provision claim under s 59 of the Succession Act 2006 (NSW) be dismissed; (b) Geoff pay the Estate's costs of the family provision claim under s 59 of the Succession Act 2006 (NSW) and his estoppel claim up until and including 28 June 2019, but there be no order as to the parties' costs in respect of those claims thereafter; (c) Merilyn and Bruce be indemnified in respect of their costs of defending Geoff's family provision and estoppel claims, such indemnity to be met from their respective shares of the Estate (and not Sue's share); (d) Merilyn and Bruce pay Geoff's costs of the First Cross-Claim on the ordinary basis and not be entitled to indemnity out of the Estate in respect of their costs of the First Cross-Claim. 4. Application for leave to cross-appeal be dismissed with costs. Catchwords: SUCCESSION – Family provision – claim by adult son for provision from the deceased's estate pursuant to s 59 of the Succession Act 2006 (NSW) – where primary judge erred in her conclusion that adequate provision had not been made for the adult son's proper maintenance and advancement in life – where adult son had remained on farming land but had received earlier significant benefits from his parents recognised as an "early inheritance" – extent to which anticipated adverse costs liability from non family provision claim should affect analysis of adequate provision COSTS – Offers of compromise – where offers of compromise were capable of acceptance and did represent a genuine element of compromise – where although the offeror could be said to have obtained a judgment no less favourable than the terms of the offer within the meaning of the Uniform Civil Procedure Rules 2005 (NSW) r 42.14(2), the Court "ordered otherwise" as to costs Legislation Cited: Civil Procedure Act 2005 (NSW) ss 56, 58, 60 Evidence Act 1995 (NSW) s 131 Family Provision Act 1982 (NSW) Limitation Act 1969 (NSW) s 47(1)(c) Probate and Administration Act 1898 (NSW) s 66 Succession Act 2006 (NSW) ss 59, 60(2) Supreme Court Act 1970 (NSW) ss 75A, 101(2) Trustee Act 1925 (NSW) s 59(4) Uniform Civil Procedure Rules 2005 (NSW) rr 20.26, 42.14, 42.25 Cases Cited: Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308 Be Financial Pty Ltd as trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 Bienstein v Bienstein (2003) 195 ALR 225; [2003] HCA 7 Blendell v Blendell [2020] NSWCA 154 Bosch v Perpetual Trustee Co Ltd [1938] AC 463 Bowditch v NSW Trustee and Guardian [2012] NSWSC 275 Clarke v Croucher [2015] NSWSC 230 Cooper v Dungan (1976) 50 ALJR 539 Davis v Davis [2012] NSWSC 201 De Lorenzo v De Lorenzo (2020) 104 NSWLR 155; [2020] NSWCA 351 DJ Singh v DH Singh [2018] NSWCA 30 Drummond v Drummond [1999] NSWSC 923 Eatts v Dawson (1990) 21 FCR 166 Goodman v Windeyer (1980) 144 CLR 490; [1980] HCA 31 Hampson v Hampson [2010] NSWCA 359; (2010) 5 ASTLR 116 Harris v Harris [2018] NSWCA 334 House v The King (1936) 55 CLR 499; [1936] HCA 40 Housman v Camuglia (2021) 104 NSWLR 615; [2021] NSWCA 106 Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 Katramados v Hasapis (No 2) [2018] NSWSC 1604 Keynes Capital Global Limited v Guo (No 2) [2020] NSWCA 336 Lewis v Lewis [2001] NSWSC 321 Limberger v Limberger [2021] NSWSC 474 McCosker v McCosker (1957) 97 CLR 566; [1957] HCA 82 Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 Muriniti v Mercia Financial Solutions Pty Ltd [2021] NSWCA 180 Neale v Neale [2015] NSWCA 206 Olsen v Olsen [2019] NSWSC 217 Pavlovic v Universal Music Australia Pty Ltd (No 2) [2016] NSWCA 31 Plunkett v Bull (1915) 19 CLR 544; [1915] HCA 14 Poche v Poche [2020] NSWSC 835 Re Allen [1922] NZLR 218; [1921] GLR 613 Re Luck (2003) 78 ALJR 177; [2003] HCA 70 Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 Sgro v Thompson [2017] NSWCA 326 Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40 Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522 Starr v Miller [2021] NSWSC 426 Steinmetz v Shannon (2019) 99 NSWLR 687; [2019] NSWCA 114 Strang v Steiner [2019] NSWCA 143; 19 ASTLR 330 Sung v Malaxos (No 2) [2015] NSWSC 290 The Age Co Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26 The Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; [1962] HCA 19 Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11 Waller v Waller [2009] WASCA 61 Warren v McKnight (1996) 40 NSWLR 390 White v Barron (1980) 144 CLR 431; [1980] HCA 14 Texts Cited: G C Lindsay, "The Family Provision Jurisdiction in Historical Perspective" (Lecture, Macquarie Law School, 3 June 2020) Category: Principal judgment Parties: Bruce Edward Bassett (First Appellant/First Cross-Respondent) Merilyn Jill Ryan (Second Appellant/Second Cross-Respondent) Geoffrey William Bassett (First Respondent) Susan Narelle Cameron (Second Respondent/Cross-Appellant) Representation: Counsel: