Morrison v Abbott [2012] NSWSC 320

Supreme Court New South Wales

Medium Neutral Citation: Morrison v Abbott [2012] NSWSC 320 Hearing dates: 16, 23 and 30 March, 2012 Decision date: 05 April 2012 Jurisdiction: Equity Division Before: Hallen AsJ Decision: Order in the substantive proceedings that: (a)There be provided out of the estate of Beverly Rose Morrison, to the Plaintiff, a lump sum of $105,000. (b)Interest on such amounts shall run at legacy rates from 16 April 2012. (c)The costs of the first Defendant, on the indemnity basis, are to be paid out of the estate of the deceased. (d)There be no order as to costs for the Plaintiff, with the intention that the Plaintiff will pay his own costs. (e)Note the agreement of the parties in Paragraphs 1 to 6 of the Short Minutes of Order under the heading "The Parties agree that". Order in the contested application that: (a) The second Defendant is to pay the costs of the first Defendant of the application, such costs to be calculated on the ordinary basis; to the extent that there is any difference between the costs recovered from the second Defendant and the indemnity costs of the application, those costs are to be paid out of the deceased's estate. (b) In the event the Plaintiff succeeds in his defence of any proceedings commenced by the second Defendant to recover unpaid arrears of child support, or in the event that those proceedings are not commenced within 21 days of the date of these orders, then he should receive his costs of the present application, such costs to be calculated on the ordinary basis. However, if in those proceedings, he is found to be liable for any amount by way of arrears of child support, he should not have his costs of the present application. Catchwords: SUCCESSION - FAMILY PROVISION - Consent Order in terms of a written agreement reached after mediation - Mother of sole minor residuary beneficiary opposes orders being made in accordance with consent order- Whether order should be made despite opposition Legislation Cited: Child Support (Assessment) Act 1989 (Cth) Child Support Registration and Collection Act 1988 (Cth) Civil Procedure Act 2005 Family Provision Act 1982 Practice Note SC Eq 7 Succession Act 2006 Uniform Civil Procedure Rules 2005 Cases Cited: Albany v Albany [2010] NTSC 25 Bartlett v Coomber [2008] NSWCA 100 Davis v Insolvency and Trustee Service Australia [2010] FCAFC 141 Groser v Equity Trustees Ltd [2008] VSC 163 Hore v Perpetual Trustee Co Ltd (NSWSC, 8 June 1995, unreported) Lanfear, In the Will of (1940) 57 WN (NSW) 181 Luton v Lessels (2002) 210 CLR 333 McCusker v Rutter [2010] NSWCA 318 McGrath v Troy [2010] NSWSC 1470 Mitchell v Osborne (NSWSC, 20 May 1987, unreported) Scali, The Application of Ferdinando [2010] NSWSC 1254 Schaechtele v Schaechtele [2008] WASC 148 Sherborne Estate: Vanvalen and Anor v Neaves and Anor; Gilroy v Neaves and Anor (No 2) [2005] NSWSC 1003 Smallman v Smallman [1972] Fam 25 Szlazko v Travini [2004] NSWSC 610 Vasiljev v Public Trustee [1974] 2 NSWLR 497 Category: Procedural and other rulings Parties: Dean Thomas Morrison (Plaintiff) Douglas William Abbott (first Defendant) Suzanne Lee Neville (second Defendant) Representation: Counsel: Mr G Hockley (Sol) (Plaintiff) Mr M P Cleary (first Defendant) Mr J Heazlewood (second Defendant) Solicitors: Lamrocks (Plaintiff) Higgins & Dawson (first Defendant) Branston Neville Solicitors (second Defendant) File Number(s): 2011/195352