Lodin v Lodin [2017] NSWCA 327

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Lodin v Lodin [2017] NSWCA 327 Hearing dates: 6 October 2017 Decision date: 15 December 2017 Before: Basten JA at [1]; White JA at [4]; Sackville AJA at [16] Decision: 1. Appeal allowed. 2. Set aside order 1 made by the primary Judge on 25 January 2017. 3. In lieu thereof order that the summons filed on 9 June 2015 be dismissed. 4. Set aside order 2 made by the primary Judge on 25 January 2017. 5. In lieu thereof order that: (a) the plaintiff pay the defendant's costs of the proceedings on the ordinary basis; (b) the defendant's costs, on the indemnity basis, insofar as not paid by the plaintiff, be paid or retained out of the Deceased's estate. 6. The moneys held in the controlled moneys account referred to in the undertakings noted on 4 May 2017 be released to or at the direction of the appellant. 7. The respondent pay the appellant's costs of the appeal on the ordinary basis. 8. The respondent have a certificate under the Suitors' Fund Act 1951 (NSW). Catchwords: SUCCESSION – family provision – application for family provision order under s 57(1)(d) of the Succession Act 2006 (NSW) by former spouse of deceased – primary judge awarded $750,000 legacy out of estate valued at about $5 million – whether factors warranted the respondent making the application within s 59(1)(b) of the Succession Act 2006 (NSW) – whether respondent a natural object of testamentary recognition in circumstances where marriage had ended 25 years previously and financial affairs resolved by final orders of Family Court Legislation Cited: Family Law Act 1975 (Cth), s 75