Baldwin v Favre [2024] NSWSC 731

Supreme Court New South Wales

Medium Neutral Citation: Baldwin v Favre [2024] NSWSC 731 Hearing dates: 14 June 2024 Date of orders: 17 June 2024 Decision date: 17 June 2024 Jurisdiction: Equity - Family Provision List Before: Kunc J Decision: Application for interim provision rejected but injunction granted in lieu on terms to permit plaintiff to live in property pending final hearing Catchwords: SUCCESSION — Family provision — Practice — Interim orders — Requirement for court to be satisfied plaintiff will receive no less than proposed interim provision — Difficulty in identifying correct basis for comparison — Injunction granted in lieu of interim provision order — Succession Act 2006 (NSW), s 62 Legislation Cited: Succession Act 2006 (NSW) s 62 Cases Cited: Boaz v Hyde [2014] NSWSC 1591 Byrd v Margiotta [2023] NSWSC 1556 Le v Angius [2022] NSWSC 240 Steinmetz v Shannon (2019) 99 NSWLR 687; [2019] NSWCA 114 Category: Procedural rulings Parties: Florencia Baldwin (Plaintiff/Applicant) Nerida Jean Favre (Defendant/Respondent) Representation: Counsel: C Birtles (Plaintiff/Applicant) D Liebhold (Defendant/Respondent)

Solicitors: Mullane & Lindsay (Plaintiff/Applicant) Turnbull Hill Lawyers (Defendant/Respondent) File Number(s): 2023/00328560

JUDGMENT

Summary 1. The present application involves two properties: Pindimar and Breakfast Pt. 2. From 2002 until his death in 2023, the plaintiff, Ms Baldwin, lived in a de facto relationship with the late Mr William Harvey Fisher. The defendant, Ms Favre, is Mr Fisher's daughter from his previous marriage and the executor of his estate under his will made on 23 July 2015. 3. In his will, Mr Fisher left Ms Baldwin a portable life interest in Pindimar. However, Ms Baldwin disputes that is proper provision. In these proceedings, which are ready to be allocated a hearing date, she seeks a family provision order under the Succession Act 2006 (NSW) that, in lieu of the interest, she receive Breakfast Pt absolutely. 4. This judgment resolves Ms Baldwin's application for an interim family provision order under s 62 of the Act that she be allowed to reside at Breakfast Pt in lieu of Pindimar, or for injunctive relief to prevent Ms Favre dealing with Breakfast Pt. 5. Applications for interim provision, while infrequent, generally involve payment of a sum of money to the applicant. This case at bar is unusual because it involves comparison between rights in two properties. This circumstance is why the Court is not satisfied for the purposes of s 62 that "no less provision" than the interim order sought by Ms Baldwin would ultimately be made. 6. However, the Court is well satisfied that Ms Baldwin has demonstrated a seriously arguable case in relation to her claim for some interest in Breakfast Pt and that she is entitled to an injunction allowing her to occupy Breakfast Pt, and that it not be dealt with, until the final hearing. That injunction will be ordered upon Ms Baldwin giving certain undertakings which the Court has determined meet the concerns raised by the estate in relation to the balance of convenience. 7. Mr C Birtles of Counsel appeared for Ms Baldwin. Mr D Liebhold of Counsel appeared for Ms Favre.