Large v Higham [No 2] [2010] NSWSC 560

New South Wales Supreme Court

CITATION : Large v Higham [No 2] [2010] NSWSC 560 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 25 March & 28 May 2010

JUDGMENT DATE : 28 May 2010

JURISDICTION : Equity

JUDGMENT OF : Slattery J at 1

1. One-half of the proceeds of sale of the property identified in these proceedings as "the Sylvania Waters property" be designated as notional estate ("the notional estate") to the extent necessary to satisfy the following orders. 2. The second defendant pay to the plaintiff out of the notional estate the sum of $400,000 such amount being in lieu of the provision for the plaintiff contained in the will. 3. Reserve questions of the payment of interest on the order for provision in the sum of $400,000 and direct the parties to exchange submissions within 7 days as to the rate and period of interest that any party contends should be ordered to be paid pursuant to Family Provision Act s 11(1)(d) on the sum. 4. In lieu of the provision made for each of them in the will of a proportion of the residuary estate of the testator, the remaining beneficiaries shall receive the residue of the estate in the following proportions: Maria: 4/7ths Carole: 2/7ths Rhonda: 1/7th And the will of the testator will be amended to reflect those changed proportions. 5. The second defendant will pay the plaintiff's costs of the determination of the issue of the designation of the Sylvania Waters property as notional estate and the estate will pay all the plaintiff's other costs. 6. Oliver Scott receive out of the estate, in lieu of the provision made for him in the will, the sum of $52,970. DECISION : 7. Oliver Scott's costs to be paid out of the estate on the indemnity basis. 8. The second defendant's costs are to be paid out of the estate on the ordinary basis in respect of (a) taking instructions and preparing an affidavit in the proceedings, (b) keeping the second defendant appraised of developments in the proceedings and (c) advising the second defendant and taking instructions from the second defendant in respect of negotiations, but with the exception of the costs the subject of this order, the second defendant will otherwise to bear her own costs of these proceedings, including all her costs of the hearing. 9. The second defendant will pay the estate's costs of the determination of the issue of the designation of the Sylvania Waters property as notional estate. 10. The first defendant's costs will be paid out of the estate on the indemnity basis. 11. Direct the second defendant provide to the plaintiff and to the first defendant, within 7 days of the date of these orders, information as to the account or accounts in any financial institution in which she or any person on her behalf holds the notional estate and identifying the current balance of the notional estate. 12. Within 28 days, the estate will pay to the plaintiff the sum of $40,000 and Maria Large will pay the sum of $20,000 to the plaintiff on account of the costs orders made in favour of the plaintiff. 13. Grant liberty to apply.