MEDNICK v SAXON [1996] NSWCA 357

MEDNICK v SAXON SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

MAHONEY P 17 June 1996

[1996] NSWCA 357

Mahoney P. This application comes before the Court in a Family Provision Act appeal. The application is twofold: for an order for expedition of the appeal and for an order for payment to the claimant of the sum ordered to be paid to the claimant, namely $75,000.

I will direct that the application for expedition of the appeal be dealt with by the Expedition Judge in the normal way.

When the matter came before the Court this morning, the parties indicated that they are agreed that the executor pay $10,000 of the amount in question within seven days, and that the balance, $65,000, be paid within seven days of the completion of the sale of the home unit, strata title unit, of property at 20/63 Darling Point Road at Darling Point.

That appears to be an appropriate arrangement, and I will make an order accordingly. I will reserve liberty to apply in case, as sometimes happens, something goes wrong in relation to the sale of the unit, and some further or other order is required. But hopefully the order that I have made will deal with that matter.

That payment is, of course, on account of the amount to be received by the applicant in the sense that, if he receives more, then of course he will receive more from the assets of the estate, provided they extend that far. If he receives less, and I do not know whether there is an appeal as to quantum, then of course the amount will have to be returned: at least, the relevant portion of it. I say that merely to make clear the basis on which the payment is made.

I will reserve the costs of the present application to the Court dealing with the appeal, if the appeal proceeds. I will reserve the costs of the present application to that Court. If that Court decides that no further sum should be paid, then it will deal with this particular application appropriately. If it thinks that some further order for payment should be made out of the estate, then it may have to consider the justification for this particular application. As the costs will be affected by that matter, I will take the somewhat unusual course of reserving those costs to that Court.