NUDD v MANNIX [2009] NSWCA 327

New South Wales Court of Appeal

CITATION: NUDD v MANNIX [2009] NSWCA 327

HEARING DATE(S): 04/08/2009

JUDGMENT DATE: 15 October 2009

JUDGMENT OF: McColl JA at 1; Macfarlan JA at 2; Handley AJA at 3

(1) Appeal allowed with costs. (2) Orders of Associate Justice McLaughlin of 21 November and 9 December 2008 set aside. (3) In lieu thereof substitute an order that the appellant receive a legacy of $120,000 from the estate of the deceased. (4) Subject to any payment under the orders that have been set aside interest on the appellant's legacy at legacy rates is to run from 28 days after the date of these orders. DECISION: (5) The burden of the additional legacy of $60,000 for the appellant is to be borne by the six legacies of $10,000 in favour of the grandchildren of the deceased. (6) Order that the costs of the plaintiff of the trial on a party and party basis, not exceeding $60,000, be paid out of the estate of the deceased. (7) Order that the defendant's costs of the trial and the appeal on an indemnity basis be paid out of the estate of the deceased, except to the extent that such costs are recovered under the Suitor's Fund Act. (8) The Court notes and accepts the undertaking given by the solicitors for the appellant on 4 August 2009 recorded in the reasons of this Court. (9) The respondent is to have a certificate under the Suitor's Fund Act.

CATCHWORDS: COSTS - power to fix cap. - FAMILY PROVISION - claim by de facto widow – need for secure independent accommodation – Crisp order for flexible life estate - question to be litigated at trial - unconditional provision made for widow.