Belfield v Belfield [2012] NSWCA 416

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Belfield v Belfield [2012] NSWCA 416 Hearing dates: 9 November 2012 Decision date: 13 December 2012 Before: Campbell JA at [1]; Sackville AJA at [87] Young AJA at [88] Decision: (1) Appeal allowed. (2) Set aside the orders of Macready AsJ in the court below. (3) Pursuant to s 23 of the Family Provision Act 1982, order that the twenty fully paid ordinary shares in the issued capital of the Second Respondent owned by the Third Respondent as Trustee of the CH Belfield Family Trust No 1 be designated as notional estate of the late Madge Clarendon Belfield to the extent necessary to satisfy orders 4 and 5. (4) Order that the Appellant receive the payment of a legacy in the sum of $300,000 from the notional estate of the late Madge Clarendon Belfield. (5) Order that the Appellant's legacy referred to in order 4 be charged against the shareholding in the Second Respondent held by the Third Respondent. (6) Order that the Respondents pay the Appellant's costs of the proceedings below and of this appeal. (7) Order that the Respondents have a certificate under the Suitors Fund Act 1951, if qualified, concerning the costs of this appeal. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: FAMILY PROVISION AND MAINTENANCE - property in respect of which order may be made - notional estate - "prescribed transaction" - property of deceased held on discretionary trusts for younger son and his progeny - deceased empowered to direct trustee to alter list of eligible beneficiaries, distribute property and exercise other discretionary powers - older son made application for provision on basis that failure before the death of the deceased to enlarge the eligible beneficiaries to include deceased or himself or to distribute property to deceased or him was a "prescribed transaction" under the Family Provision Act - application granted - shares held on trust to be designated as notional estate sufficient to satisfy provision and costs