SMITH v DAYMAN and ORS [1994] NSWCA 286

SMITH v DAYMAN SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

HANDLEY, SHELLER and POWELL JJA 11 February 1994, 9 September 1994

[1994] NSWCA 286 FAMILY PROVISION — exercise of Master's discretion.

FAMILY PROVISION — net assets of estate comprised home (subject to mortgage) and bank account moneys — appellant granted specific bequest of bank account moneys out of estate — respondents granted residue — Master granted further provision and ordered legacy of $26,000 in favour of appellant — whether Master's exercise of discretion miscarried — held: it had — the Master failed to have regard to the effect of his order on the housing needs of the respondents.

ORDERS

1. Appeal allowed.

2. Set aside the judgment of Master Windeyer in so far as it ordered payment to the plaintiff of a legacy of $26,000 carrying interest from 18 February 1990.

3. Remit the proceedings to the Equity Division for the purpose of determining what additional provision, if any, should be made for the plaintiff out of the estate of the deceased including any notional estate in the light of all relevant circumstances at the date of the further hearing as proved in the evidence, all parties having leave to file further evidence subject to the directions of the Equity Division.

4. Order that the respondent Elizabeth Dayman have a certificate under the Suitors Fund Act for her costs of the appeal and that any costs not recovered from the Fund be paid or retained, on a trustee basis, out of the actual and any notional estate of the deceased.

5. The appellant's costs of the appeal including the costs of her legal advisers to abide the further order of the Court following the hearing in the Equity Division.

Handley JA This is an appeal by the plaintiff from orders made by Master Windeyer (as he then was) under the Family Provision Act ordering further provision for her benefit out of the estate of her father. The case at trial was a difficult one when decided by the Master on 18 October 1989 but has been made more difficult by subsequent events. In the result the appeal did not come on for hearing before this Court until 11 February 1994. As will appear complications arose because of events which occurred after the appeal was instituted and because of the failure by the appellant's legal advisers to comply with long established rules and procedures of this Court relating to the reception of further evidence.