Large v Higham [No 3] [2010] NSWSC 681

Large v Higham [No 3] [2010] NSWSC 681

The Court exercised the discretion under Family Provision Act 1982 (NSW) s 11(1)(d) to order interest because Maria Large had enjoyed the benefit of the Sylvania Waters Property and Fund for years, the replaced testamentary provision was intended to provide maintenance to the plaintiff from the testator's death, the plaintiff had been without that maintenance and without resources, and an interest order would not give a double benefit. Interest should be paid from the Sylvania Waters Fund, as the principal provision was ordered from that notional estate and Maria Large had the benefit of it. Taking account of the delay and guidance in Fiorentini v O'Neill, interest was to accrue from two...

Jurisdiction
Australia
Judgment Date
25 June 2010
Procedural Posture
Family Provision Proceedings Concerning Interest on an Order for Provision Out of Notional Estate / Consequential Orders; Third Judgment on Interest After Principal and Second Judgments
Outcome
Interest ordered on the plaintiff's $400,000 order for provision from the estate.
Legal Topics
['family Provision and Maintenance' 'notional Estate' 'interest on Order for Provision' 'legacies' "executor's Year"]
['succession' 'equity'] ['family Provision and Maintenance' 'notional Estate' 'interest on Order for Provision' 'legacies' "executor's Year"]

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Procedural Posture

Family Provision Proceedings Concerning Interest on an Order for Provision Out of Notional Estate / Consequential Orders; Third Judgment on Interest After Principal and Second Judgments

Legal Issues

  1. 1 ["Whether an order for interest should be made on the plaintiff's order for provision" 'If interest is ordered, from what fund it should be paid' 'From what date interest should accrue' 'At what rate interest should accrue']

Ratio Decidendi

The Court exercised the discretion under Family Provision Act 1982 (NSW) s 11(1)(d) to order interest because Maria Large had enjoyed the benefit of the Sylvania Waters Property and Fund for years, the replaced testamentary provision was intended to provide maintenance to the plaintiff from the testator's death, the plaintiff had been without that maintenance and without resources, and an interest order would not give a double benefit. Interest should be paid from the Sylvania Waters Fund, as the principal provision was ordered from that notional estate and Maria Large had the benefit of it. Taking account of the delay and guidance in Fiorentini v O'Neill, interest was to accrue from two...

Court Disposition

Interest ordered on the plaintiff's $400,000 order for provision from the estate.

Orders

  • ["Interest on the plaintiff's order for provision in the sum of $400,000 is to accrue from 2 years after the death of the testator at the prescribed rate under Civil Procedure Act, Schedule 5." 'The parties are directed to calculate the interest and bring in short minutes of order to give effect to the reasons.']