Clifford v Mayr and Anor [2009] NSWSC 16

New South Wales Supreme Court

CITATION : Clifford v Mayr and Anor [2009] NSWSC 16

HEARING DATE(S) : 12 August 2008

JUDGMENT DATE : 4 February 2009

JUDGMENT OF : McLaughlin AsJ

1. I order that the summons be dismissed. DECISION : 2. I order that the Plaintiff pay the costs of the Defendants, such costs to be on the party and party basis. 3. I order that the Defendants be entitled to retain from the estate of the late Helmut Mayr ("the Deceased") the difference between the foregoing costs which they may recover from the Plaintiff and the costs of the Defendants on the indemnity basis. 4. The exhibits may be returned.

CATCHWORDS : SUCCESSION - family provision - claim by de facto widow - entire estate, other than family home, was left to Plaintiff - family home was left to the three children of Plaintiff and Deceased, being infants of tender years - financial and material circumstances of Plaintiff - whether Plaintiff has been left without adequate provision for her proper maintenance - Defendants recognise right of Plaintiff to reside with her infant children in family home - Plaintiff claims family home absolutely - Court must be scrupulous and zealous in protecting the interests of those persons who are not capable of protecting their own interests.

LEGISLATION CITED : Family Provision Act 1982

CATEGORY : Principal judgment

CASES CITED : Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 19

Sondra Louise Clifford (Plaintiff) PARTIES : Peter Mayr (First Defendant) Joseph Donnelly (Second Defendant)

FILE NUMBER(S) : SC 4084 of 2007