Liprini v Liprini [2008] NSWSC 423

New South Wales Supreme Court

CITATION : Liprini v Liprini [2008] NSWSC 423

HEARING DATE(S) : 11 April 2008 JURISDICTION : Equity Division Duty Judge List

JUDGMENT OF : Brereton J

EX TEMPORE JUDGMENT DATE : 11 April 2008

DECISION : Motion dismissed with costs.

CATCHWORDS : CONTEMPT – where orders made by consent by Registrar pursuant to (NSW) Family Provision Act 1982, s 7 for provision out of estate – whether failure to pay by defendant executor is punishable contempt of court – "criminal contempt". - FAMILY PROVISION ACT 1982 – enforcement – nature of orders made pursuant to section 7 – whether an order of the court or a codicil to relevant Will.

(NSW) Family Provision Act 1982, ss 7, 14 LEGISLATION CITED : Supreme Court Rules, Pt 55 Uniform Civil Procedure Rules, Pt 40, rr 7, 8

CATEGORY : Principal judgment

Gorman v Gorman; Estate late Jeanette Mary Gorman [2003] NSWSC 647 CASES CITED : In re Jennery [1967] 1 Ch 280 Wentworth v Wentworth (NSWSC, 4 September 1991, unreported) Wiblen v Feros (1998) 44 NSWLR 158

PARTIES : Kevin Liprini (plaintiff) Allan Stephen Liprini (defendant)

FILE NUMBER(S) : SC 3790/06

COUNSEL : Mr M R Lawson Mr N Lyon (solicitor)

SOLICITORS : Redmond Hale Simpson Lawyers (plaintiff) Neil Lyon, Solicitor (defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION DUTY JUDGE LIST

BRERETON J

Friday 11 April 2008

3790/06 Kevin Liprini v Allan Stephen Liprini JUDGMENT (ex tempore) 1 HIS HONOUR: James Natale Liprini died on 21 January 2005 leaving a Will dated 5 October 2001, probate of which was granted on 2 August 2005 to the defendant Allan Stephen Liprini. According to the inventory of property filed in support of the application for probate, the deceased left assets totalling about $1.18 million, and also had an interest as joint tenant in another real property, presumably with his wife, with whom he also shared, as joint tenants, two bank accounts. By summons filed on 18 July 2006, the plaintiff Kevin Liprini claimed an order under (NSW) Family Provision Act 1982, s 7, for provision for his maintenance and advancement in life out of the estate. 2 The defendant swore and served an affidavit, as required by then Supreme Court Rules, Pt 77 r 59, on 19 October 2006, in which he disclosed that, in accordance with provisions of the Will, sums totalling in excess of $658,000 had been transferred to the deceased's widow, and a real property worth $550,000 had been transferred to the defendant, and that the current value of the undistributed estate was only $30,000. 3 The proceedings were mediated before a Registrar of the Court on 6 December 2007, at which all parties were apparently represented by lawyers. The mediation was conducted in circumstances in which, according to the defendant, he was very ill and unable to comprehend what was proceeding. It is not necessary and would be indeed inappropriate, to determine on this application whether that was so and, if so, what consequences might follow; at this stage, in any event, no application has been made to set aside the orders which were made, by consent, on 6 December following the settlement, in the following terms: