Franks v Franks [2013] NSWCA 60

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Franks v Franks [2013] NSWCA 60 Hearing dates: 28 November 2012 Decision date: 28 March 2013 Before: McColl JA at [1]; Sackville AJA at [2]; Young AJA at [3]; Decision: 1. Appeal allowed. 2. Vary Order 5 made by Macready AsJ by deleting from Order 5 the words "in equal shares" and by substituting therefore the words as to two-thirds undivided share for Gregory Franks and one-third undivided share for Brad Franks. 3. Order that Brad Franks should pay Gregory Frank's costs of the appeal 2011/50354 but have a certificate under the Suitors' Fund Act 1951. 4. No order as to the costs of Alan Franks. 5. Order that the costs of Gregory Franks in appeal 2012/452655 be paid out of the estate of Dawn Franks 6. Liberty to Brad Franks to move to delete, modify or vary the above order 3 as to costs by motion filed within 14 days of the delivery of these reasons. [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: WILLS AND ESTATES - family provision claim - competing claims or interests - financial needs and resources of claimants - contribution to deceased's welfare - whether primary judge erred in dividing estate equally between claimants Legislation Cited: Succession Act 2006 Suitors' Fund Act 1951 Cases Cited: Durham v Durham [2011] NSWCA 62; 80 NSWLR 335 House v The King [1936] HCA 40; 55 CLR 499 Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 Category: Principal judgment Parties: Alan Franks (Appellant in 12/4565) Gregory Franks (Respondent in 12/45265) Gregory Franks (Appellant in 12/45269) Brad Franks (Respondent in 12/45269) Representation: Counsel: David Lloyd (Brad Franks) Solicitors: Ian Collins, Solicitor (Gregory Franks) Byrnes & Cox Lawyers (Brad Franks) File Number(s): CA45265 of 2012 CA45269 of 2012 Publication restriction: No Decision under appeal Citation: Franks v Franks [2011] NSWSC 1261 Date of Decision: 2011-11-10 00:00:00 Before: Macready AsJ File Number(s): SC346839 of 2010 SC50364 of 2011