Lavery-Fenelon v Nicholas [2014] NSWCA 342

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Lavery-Fenelon v Nicholas [2014] NSWCA 342 Hearing dates: 25 September 2014 Decision date: 25 September 2014 Before: Basten JA at [1]; Meagher JA at [19] Decision: 1. Dismiss the application for leave to appeal. 2. Order that the respondents' costs of the proceedings in this Court are to be paid by the applicant to be assessed on an ordinary basis. 3. The difference between the costs recovered by the respondents from the applicant and the respondents' costs of the proceedings, assessed on an indemnity basis, to be paid out of the deceased's estate. [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: APPEAL - application for leave - whether leave should be granted to appeal dismissal of separate proceedings commenced by applicant - whether leave should be granted to appeal costs order - whether notations in orders can be appealed

SUCCESSION - executors and administrators - primary judge ordered distribution of estate - separate proceedings by the defendant seeking same order dismissed - costs ordered against the defendant - notations made in orders about outstanding issues with the estate Cases Cited: Re Felicity; FM v Secretary, Department of Family and Community Services (No 3) [2014] NSWCA 226 Category: Principal judgment Parties: Rosemarie Lavery-Fenelon (Applicant) Peter Herbert Nicholas (First Respondent) Kit Ruth Clifford (Second Respondent) Representation: Counsel: Applicant self-represented D V Robinson (Respondents) Solicitors: Applicant self-represented Lane & O'Rourke (Respondents) File Number(s): 2014/148756 Decision under appeal Jurisdiction: 9111 Date of Decision: 2014-04-28 00:00:00 Before: Lindsay J File Number(s): 2013/385072