Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Favre v Baldwin [2024] NSWCA 228 Hearing dates: 3 September 2024 Date of orders: 3 September 2024 Decision date: 03 September 2024 Before: Bell CJ, Leeming JA, McHugh JA Decision: Application for leave to appeal refused with costs. Catchwords: SUCCESSION — Mandatory interlocutory injunction Succession Act 2006 (NSW), s 62 — Leave to appeal refused Legislation Cited: Succession Act 2006 (NSW) s 62 Category: Procedural rulings Parties: Nerida Jean Favre (Applicant) Florencia Baldwin (Respondent) Representation: Counsel: J Brown and H Rogers (Applicant) C Birtles and C Harris (Respondent) Solicitors: Turnbull Hill Lawyers (Applicant) Mullane & Lindsay (Respondent) File Number(s): 2024/238768 Publication restriction: N/A Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity Citation: [2024] NSWSC 731 Date of Decision: 17 June 2024 Before: Kunc J File Number(s): 2023/328560 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] JUDGMENT – EX TEMPORE 1. THE COURT: This is an application for leave to appeal from a decision of Kunc J delivered on 17 June 2024: Baldwin v Favre [2024] NSWSC 731. His Honour on that occasion granted orders including a mandatory interlocutory injunction. His orders were subsequently stayed pending the hearing of this application for leave to appeal. 2. Although finding that no case was made out for interim provision under s 62 of the Succession Act 2006 (NSW) (Succession Act), his Honour nevertheless granted, as I have said, what was in effect a mandatory interlocutory injunction permitting the plaintiff in a family provision application to occupy pro tem a property forming part of the estate. The application for leave to appeal seeks to challenge his Honour's orders. 3. At the time of the application before the primary judge, his Honour was informed that the matter was ready for hearing. Since that time some further interlocutory steps have taken place. When the application for leave to appeal came on for hearing this morning, the parties indicated that the matter could be ready and would be ready for hearing, with necessary updating material, within two to three weeks on an estimate of two days plus. 4. The Court is in a position to supply a judge for hearing of the matter in the week commencing Tuesday 8 October 2024. In these circumstances, there was broad agreement that there was little utility in granting leave to appeal. 5. In reaching this view, the Court is not to be taken to endorse the primary judge's reasoning which led to the granting of a mandatory interlocutory injunction in circumstances where no case was made out for interim provision under the Succession Act. It was far from clear what the juridical basis was for the relief granted. Issues of balance of convenience only arise after that proper juridical basis is established. 6. The orders of the Court will be as follows: 1. Application for leave to appeal refused with costs; 2. Order that the applicant's costs be paid out of the estate on the indemnity basis; 3. List the hearing before McHugh JA on 8 October for three days (noting that if there is an issue about whether the matter starts on the 8th or the 9th the parties should first confer and then have liberty to communicate directly with McHugh JA's chambers without needing to list the matter for any confirmation); 4. Make the usual order as provided for in annexure A to the practice note with the following qualification: the White Book in the current application for leave to appeal will stand as the court book, with any supplemental material to follow with pagination continuing on from the current White Book with necessary amendments to the index. Otherwise the usual orders for hearing are to apply; 5. Liberty to apply on two days' notice to McHugh JA's chambers; 6. Vacate the listing before the registrar on 12 September; and 7. Direct that updating affidavits be filed and served by 17 September. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 September 2024