DIVER v NEAL [2009] NSWCA 54

New South Wales Court of Appeal

CITATION: DIVER v NEAL [2009] NSWCA 54

HEARING DATE(S): 4 March 2009

JUDGMENT DATE: 18 March 2009

JUDGMENT OF: Allsop P at 1; Ipp JA at 2; Basten JA at 3

(1) Allow the appeal and set aside the orders made in the Equity Division on 7 April 2008.

(2) In lieu thereof, order that:

(a) provision be made from the estate of the late Keith Trevethan in favour of the applicant, Kaye Aileen Diver, in an amount of $60,000, in addition to the bequest under the will of the deceased; (b) the amount be borne equally in diminution of the entitlements of the residuary beneficiaries; DECISION: (c) the defendants pay the plaintiff's costs of the proceedings in the Equity Division, and (d) the defendants be entitled to retain from the estate the costs payable under par (c) and their costs of the proceedings assessed on an indemnity basis.

(3) The Respondents pay the Appellant's costs of the appeal.

(4) The Respondents be entitled to retain from the estate the costs payable under order (3) and their own costs of the proceedings on appeal, assessed on an indemnity basis, to the extent that those costs are not recoverable from the Suitors' Fund.

(5) Grant the Respondents a certificate under the Suitors' Fund Act 1951 (NSW).

[ CATCHWORDS: APPEAL – exercise of discretionary power – basis of appellate intervention – whether trial judge gave sufficient reasons for failing to be satisfied that testator's provision inadequate or failed to give appropriate weight to factors – Family Provision Act 1982 (NSW), s 9(2) - COSTS – payment out of estate – costs consequences for different categories of eligible person – whether costs necessarily follow event – where order for provision in favour of eligible person – costs of executors defending estate – Family Provision Act 1982 (NSW), s 33 - SUCCESSION – family provision and maintenance – "eligible person" – whether application warranted – whether testator made adequate provision for applicant's maintenance and advancement – whether further provision should be made – size of estate – community standards – stepdaughter/stepfather relationship – early and later years of relationship – whether additional provision to benefit applicant or creditors and children – applicant's financial circumstances – whether appropriate to interfere with testator's exercise of testamentary powers – consequences for residuary beneficiaries – Family Provision Act 1982 (NSW), ss 6, 7, 9 - STATUTORY INTERPRETATION – assumption that Family Provision Act 1982 (NSW) applies as in force at date of trial – Act repealed at time of appeal – whether assumption applies in relation to costs provisions – Interpretation Act 1987 (NSW), s 30(1)(b) – Succession Act 2006 (NSW) Ch 3 – Succession Amendment (Family Provision) Act 2008 (NSW) - STATUTORY INTERPRETATION – competing costs provisions – s 33 of Family Provision Act 1982 (NSW) substitute for s 98 of Civil Procedure Act 2005 (NSW) and Part 42 of Uniform Civil Procedure Rules 2005 (NSW) - WORDS AND PHRASES – "advancement" – "eligible person" – "inadequate" – "maintenance" – "provision"