Phillips v James [2014] NSWCA 4

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Phillips v James [2014] NSWCA 4 Hearing dates: 16 September 2013 Decision date: 06 February 2014 Before: Beazley P at [1]; Basten JA at [112]; Meagher JA at [130] Decision: (1) Appeal allowed; (2) Set aside the orders made by Stevenson J at first instance; (3) Order that further provision be made in favour of Brian in the sum of $100,000 out of property to be designated as notional estate; (4) Reserve the question of what property is to be designated as notional estate for the purposes of Order 3; (5) Direct the respondents, Gaye James and Gary Phillips, to file written submissions by 25 February 2014 in respect of the property to be designated as notional estate and in respect of costs of the trial and the appeal; (6) Direct the appellant Brian Phillips to file any submissions by 11 March 2014 in respect of the property to be designated as notional estate and in respect of the costs of the trial and the appeal; (7) Direct that the questions of the property to be designated as notional estate and of the costs of the trial and the appeal be determined on the papers. [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: SUCCESSION - family provision and maintenance - whether the allocation of the residue of the estate to the applicant was a failure by testator to make sufficient provision - diminishment of the residue by decisions benefiting the respondents.