Chapple v Wilcox [2014] NSWCA 392

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Chapple v Wilcox [2014] NSWCA 392 Hearing dates: 22 October 2014 Decision date: 18 November 2014 Before: Basten JA at [1]; Barrett JA at [29]; Gleeson JA at [150] Decision: 1. Appeal allowed. 2. Set aside the order 1 made by Pembroke J on 21 February 2014 and the orders made by Pembroke J on 17 April 2014 and order instead as follows: "(1) Order that the proceedings brought by the first plaintiff be dismissed. (2) Without prejudice to interlocutory costs orders previously made, order that the first plaintiff pay one-half of the costs of the defendant up to and including 10 February 2014 and the whole of the defendant's costs thereafter." 3. Order that the respondent pay the appellant's costs of the appeal and that a certificate under the Suitors' Fund Act 1951 (NSW) be granted to the respondent. [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 - application for family provision order under Part 3 Succession Act 2006 (NSW) - application by adult grandson - deceased left whole estate to his only child (applicant's mother) - estate consisting principally of the deceased's interest in a grazing enterprise part owned by the sole beneficiary - primary judge ordered payments totalling $387,000 to applicant grandson - failure to articulate any cogent basis for departing from the testator's scheme of benefaction in favour of his only child - no such basis available on the evidence - evaluative judgment miscarried - principles relevant to family provision claims by grandchildren discussed - PROCEDURE - costs - costs in family provision cases - principle that costs follow the event generally applicable - unsuccessful applicants should not expect that, as a general rule, the costs discretion will be applied so as to exempt them from liability for costs. Legislation Cited: Civil Procedure Act 2005 (NSW) Family Provision Act 1982 (NSW) Succession Act 2006 (NSW) Suitors' Fund Act 1951 (NSW) Supreme Court Act 1970 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Andrew v Andrew [2012] NSWCA 308; 81 NSWLR 656 Bladwell v Davis [2004] NSWCA 170 Bowditch v NSW Trustee and Guardian [2012] NSWSC 275 Bowyer v Wood [2007] SASC 327; 99 SASR 190 Daniels v Hall (No 2) [2014] WASC 272 Diver v Neal [2009] NSWCA 54 Durham v Durham [2011] NSWCA 62; 80 NSWLR 335 Hampson v Hampson [2010] NSWCA 359 House v The King [1936] HCA 40; 55 CLR 499 Jvancich v Kennedy (No 2) [2004] NSWCA 397 MacEwan Shaw v Shaw [2003] VSC 318; 11 VR 9 McCosker v McCosker [1957] HCA 82; 97 CLR 566 McCusker v Rutter [2010] NSWCA 318 O'Dea v O'Dea [2005] NSWSC 46 Permanent Trustee Co Ltd v Fraser (1995) 38 NSWLR 24 Phillips v James [2014] NSWCA 4; 85 NSWLR 619 Re Fulop Deceased; Fulop v Public Trustee (1987) 8 NSWLR 679 Sassoon v Rose [2013] NSWCA 220 Sayer v Sayer [1999] NSWCA 340 Simons v Permanent Trustee Co Ltd; Estate D Hakim [2005] NSWSC 223 Singer v Berghouse [1993] HCA 35; 67 ALJR 708 Singer v Berghouse [1994] HCA 40; 181 CLR 201 Slack v Rogan; Palffy v Rogan [2013] NSWSC 522; 85 NSWLR 253 Tobin v Ezekiel [2012] NSWCA 285; 83 NSWLR 757 Tsivinsky v Tsivinsky [1991] NSWCA 269 Verzar v Verzar [2014] NSWCA 45 Category: Principal judgment Parties: John Francis Chapple as executor of the estate of Patricia Anne Wilcox (Appellant) Robert William Wilcox (Respondent) Representation: Counsel: Mr B J Skinner (Appellant) Respondent in person Solicitors: Newnhams Solicitors (Appellants) Respondent in person File Number(s): CA 2014/85147 Decision under appeal Citation: [2012] NSWSC 1138; [2014] NSWSC 88; no citation Before: Pembroke J File Number(s): 2010/426690