Davy v Black No 2 [2012] NSWSC 361

Supreme Court New South Wales

Medium Neutral Citation: Davy v Black No 2 [2012] NSWSC 361 Hearing dates: 12/04/12 Decision date: 12 April 2012 Jurisdiction: Equity Division Before: Associate Justice Macready Decision: I decline to vary the judgment. I dismiss the motion with costs. I decline to make the costs orders on the indemnity basis and the costs will be on the ordinary basis. I order that interest be paid on the legacy if it is not paid within 14 days of today's date and from that date at the rate provided for under the Probate Administration Act. Catchwords: Application to vary earlier judgment within UCPR 36.16(3A). No power to review judgment. Legislation Cited: Family Provision Act 1982 Cases Cited: De L v Director-General, NSW Department of Community Services (No 2) (1997) 190 CLR 207 at 215 Dillon v Gosford County Council 184 LGERA 179 at para 37 Category: Consequential orders Parties: Helen Margaret Davy (plaintiff) Jeanette Louise Black (first defendant) Noel James Black (second defendant) Representation: Mr R Colquhoun (plaintiff) Ms L Wilson (defendants) Stacks Forster (plaintiff) Lumleys (defendants) File Number(s): 2010/00230721

judgment 1HIS HONOUR: This is the hearing of the defendant's motion filed on 8 December 2011 seeking to vary a judgment which I gave on 16 November 2011. 2The proceedings reported as Davy v Black [2011] NSWSC 1416 were a claim for provision under the Succession Act 2006 by a daughter of the deceased. The deceased was survived by two daughters and, apart from dealing with a horse "Excelltastic", he died intestate. His estate was not large and the case really concerned his notional estate in the order of $3.3 million. 3Judgment pursuant to my decision was entered on the Court's computer system on 24 November 2011 and the motion, as I have said, was filed on 8 December 2011, within 14 days of the entry of judgment. 4The application thus fell within UCPR 36.16(3A) which is in the following terms: (3A) If notice of motion for the setting aside or variation of a judgment or order is filed within 14 days after the judgment or order is entered, the court may determine the matter, and (if appropriate) set aside or vary the judgment or order under subrule (1), as if the judgment or order had not been entered. 5The application was not made under UCPR 36.17 (the slip rule). 6Before turning to the power to make the order sought, it is necessary to set out the true nature of the application. I will assume, for the purposes of what follows, that the reader has read my principal judgment. 7The claim is that I should now review the amount of the legacy which I ordered in favour of the plaintiff of $975,000. 8The grounds for asking me to so vary it were as follows: 1. If the determination of the size of the legacy was based upon the amount of the notional estate then the Court acted on a wrong assumption as to the size of the notional estate. 2. If the determination of the size of the legacy was based upon a comparison of the parties' net worth, the defendant's net worth stated in para 73 of the judgment is incorrect. 3. The Court's considerations in paras 89 to 103 of the judgment does not equate to (or perhaps justify) the additional legacy of $475,000. 9Before turning to the illogicality of dealing with these matters as separate items I will expand on the grounds.