FIORENTINI v O'NEIL [1998] NSWCA 79

FIORENTINI v O'NEIL SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MASON P, HANDLEY JA and FITZGERALD AJA 12 October 1998, 4 December 1998

[1998] NSWCA 79

Family provision and maintenance — order that costs be paid out of the estate or notional estate — circumstances in which usual order as to costs can be modified — order that interest be paid on a sum — applicable rate of interest — Family Provision Act 1982, s11(1)(d), s15(3), s33.

Family provision and maintenance — value of the estate — order designating property as notional estate — concession that appellant did not stand as competing claimant — Family Provision Act 1982, s27, s28.

Family provision and maintenance — order that costs be paid out of the estate or notional estate — circumstances in which usual order as to costs can be modified — consequence of unaccepted "Calderbank" offer — order that interest be paid on a sum — applicable rate of interest — Family Provision Act 1982, s11(1)(d), s15(3), s33.

The Family Provision Act 1982 ("the Act") provides for orders for provision in favour of eligible persons to be made out of the estate or notional estate of a deceased person. The Court may order that costs, charges and expenses of and incidental to proceedings under the Act may be paid out of the estate or notional estate, or both, in such manner as the Court thinks fit - s33(1). The Court shall not award cost in favour of an applicant just because he or she has been successful in the application - s33(3). Where provision is ordered out of an estate, the Act provides that the Court may specify that the whole or any part of a sum shall bear interest at such rate as the Court thinks fit for such period as the Court thinks fit - s11(1)(d) and s15(3).

Two errors in the assessment of the value of the estate in the judgment below led the Court to re-exercise the discretion in the light of fresh evidence adduced at the appeal. However, the appellant was not permitted to resile from a concession made below that she had no financial need standing in the way of the making of proper provision in favour of the respondent.