Martyn v Martyn [2013] NSWSC 134

Supreme Court New South Wales

Medium Neutral Citation: Martyn v Martyn [2013] NSWSC 134 Hearing dates: 21 and 22 February 2013 Decision date: 25 February 2013 Jurisdiction: Equity Division Before: Associate Justice Macready Decision: 1. Joshua Martyn and Trent Martyn are to receive a legacy of $80,000 each out of the notional estate of the deceased. 2. Interest is to run on the legacy at the rate provided for in the Probate and Administration Act 1898 three months from today's date. 3. The plaintiffs' costs on the ordinary basis and the defendant's costs to be paid or retained out of the notional estate. 4. I designate the property of the defendant at 35 Powderworks Road, Narrabeen, as notional estate for the purposes of and to the extent necessary to meet the order for the legacy and the costs referred to above. 5. I give liberty to apply. 6. The exhibits can be returned subject to the solicitors undertaking to retain them for the appeal period. 7. The payment under this judgment to be secured by a charge over the defendant's property at Powderworks Road, Narrabeen. 8. The plaintiffs' costs on the ordinary basis up to and including 24 January 2013 be paid on the ordinary basis out of the estate of the deceased and thereafter the defendant should pay the plaintiffs' costs of the proceedings on the indemnity basis. 9. The defendant's costs are to be paid or retained out of the notional estate. Catchwords: SUCCESSION - application for provision for children from former marriage of deceased - estate administered in bankruptcy - provision from notional estate Legislation Cited: Family Provision Act 1982 Succession Act 2006 Cases Cited: Cameron v Hills (NSWSC, Needham J, 26 October 1989, unreported) Cetojevic & Anor v Cetojevic [2007] NSWCA 33 Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 Wade v Harding (1987) 11 NSWLR 551 Category: Principal judgment Parties: Joshua Takeshi Martyn and Trent Yota Martyn by their tutor Miho Kawasaki (Plaintiffs) Preedika Martyn (Defendant) Representation: Counsel: Mr CF Hodgson (Plaintiffs) Mr RK Weaver (Defendant) Solicitors: Ramensky Lawyers (Plaintiffs) Argus Lawyers (Defendant) File Number(s): 2011/405791