Tchadovitch v Tchadovitch [2010] NSWCA 316

New South Wales Court of Appeal

CITATION: Tchadovitch v Tchadovitch [2010] NSWCA 316

HEARING DATE(S): 19 October 2010

JUDGMENT DATE: 24 November 2010

JUDGMENT OF: Allsop P at 1; Campbell JA at 6; Young JA at 94

(1) Appeal dismissed with costs. DECISION: (2) Grant leave to cross-appeal, and dismiss the cross-appeal with cost. (3) Appellants' Notice of Motion filed 30 September 2010 dismissed with costs. [The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

CATCHWORDS: SUCCESSION – Family provision and maintenance – principles upon which relief granted – appeal relating to quantum of award – process for calculating adequate provision – use of actuarial evidence in determining appropriate quantum of fund to secure an income for deceased's wife – found that it was within the discretion of the trial judge to take into account expert evidence when parties both presumed such evidence – discussion of extent to which use of expert and actuarial evidence helpful in Family Provision Act matters – SUCCESSION – Family provision and maintenance – principles upon which relief granted – relevance of Todorovic v Waller to Family Provision Act matters – failure of trial judge to derive lump sum relying only on figures yielded by 3% discount tables not erroneous – SUCCESSION – Family provision and maintenance – obligation of executors to provide relevant information – PROCEDURE – costs – departing from the general rule – when indemnity costs available – whether rejection of Calderbank offer lower than final award sufficient to justify costs order on indemnity basis – rules relating to Calderbank different to rules relating to offers of compromise in UCPR – indemnity costs not available when Appellants did not act unreasonably by rejecting the offer – rejection reasonable when likely range of outcomes not clear at the time that the offer was made