Byrd v Margiotta [2023] NSWSC 1556

Supreme Court New South Wales

Medium Neutral Citation: Byrd v Margiotta [2023] NSWSC 1556 Hearing dates: 8 December 2023 Date of orders: 8 December 2023 Decision date: 08 December 2023 Jurisdiction: Equity - Succession & Probate List - Family Provision Before: Meek J Decision: Order for interim provision made in favour of the plaintiff Catchwords: SUCCESSION — Family provision — Interim provision — Moderately large estate worth $2.8M — Deceased survived by son and daughter (the plaintiff) — The effect of the deceased's Will is that the plaintiff was given a sum of $10,000 in cash and the residue was given to the son (70%) and his children received the balance — Matter listed for final hearing in April 2024 — Plaintiff has meagre income and financial resources and initially sought interim provision for matters associated with moving house and securing alternative accommodation, a car, cataract surgery, legal costs and contingencies — The defendant, a solicitor executor, proposed more limited interim provision than sought by the plaintiff — The plaintiff's claim for interim provision was pressed as having some urgency to be heard expeditiously prior to the end of the Court term — On the hearing of the application the plaintiff's interim claims were refined to seeking monies for a car, cataract surgery, legal costs and a fund for emergencies — Interim provision ordered — On facts no provision for legal costs SUCCESSION — Family provision — Interim provision — The Court gives encouragement to parties to explore whether a sensible interim arrangement is able to be met on appropriate terms out of the estate — Reference made to authorities regarding contested claims which outline the threshold enlivening an order for interim provision to be made and difficulties in assessment LAW REFORM — Family provision — Interim provision — Suggestion that consideration ought to be given to reviewing the threshold required for interim provision or to otherwise extend the terms of the operation of s 92A Probate and Administration Act 1898, or find some other solution consistent with facilitating the just, quick and cheap resolution of interim provision claims and if appropriate, potential statutory reform Legislation Cited: Civil Procedure Act 2005 (NSW) Family Provision Act 1982 (NSW) Probate and Administration Act 1898 (NSW) Succession Act 2006 (NSW) Cases Cited: Barns v Barns (2003) 214 CLR 169; [2003] HCA 9 Bryan v Beveridge [2021] NSWSC 1406 Cetojevic v Cetojevic [2006] NSWSC 431 Commissioner of Stamp Duties (Qld) v Livingston [1965] AC 694 Moore v McLean [2022] NSWSC 978 Official Receiver in Bankruptcy v Schultz (1990) 170 CLR 306; [1990] HCA 45 Papantoniou v Foundouradakis [2023] NSWSC 1374 Porte v Couso (Supreme Court (NSW), McLelland J, 16 March 1992, BC9202004, unrep) Quek v Beggs (1990) 5 BPR 11,761 Re Sherborne Estate (No 2): Vanvalen v Neaves; Gilroy v Neaves (2005) 65 NSWLR 268; [2005] NSWSC 1003 Ritossa v Ritossa [2023] NSWCA 14 Roberts v Moses [2015] NSWSC 1504 Steinmetz v Shannon (2019) 99 NSWLR 687; [2019] NSWCA 114 Young v Salkeld (1985) 4 NSWLR 375 Texts Cited: Practice Note SC EQ 07 – Succession & Probate Lists Category: Procedural rulings Parties: Annette Hilda Byrd (Plaintiff / Applicant) Antonio Angelo Margiotta (Defendant / Respondent) Representation: Counsel: L Hammond (Plaintiff / Applicant) D Stewart (Defendant / Respondent)