Diver v Neal [2009] NSWCA 115

Diver v Neal [2009] NSWCA 115

The appellant's motion sought to achieve a different legal effect than the orders already made and did not meet the exceptional circumstances required to reopen or vary the judgment. The argument regarding protections from creditors could and should have been raised at the hearing of the substantive appeal. Making such an order would also involve important considerations under the Bankruptcy Act. Therefore, the motion to make an additional discretionary trust order was dismissed.

Jurisdiction
Australia
Judgment Date
20 May 2009
Procedural Posture
Appeal / Motion for Further Order Following Delivery of Judgment
Outcome
Motion dismissed
Legal Topics
['judgments and Orders' 'amending and Varying Orders' 'family Provision' 'provision for Applicants Under Will' 'discretionary Trusts' 'effect of Bankruptcy Act']
['procedure' 'succession'] ['judgments and Orders' 'amending and Varying Orders' 'family Provision' 'provision for Applicants Under Will' 'discretionary Trusts' 'effect of Bankruptcy Act']

Case Brief

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Procedural Posture

Appeal / Motion for Further Order Following Delivery of Judgment

Legal Issues

  1. 1 ["Whether the court should make an additional order placing the appellant's legacy in a discretionary trust to prevent access by creditors" 'Whether the court should reopen or vary its previous orders to make provision under the Family Provision Act 1982 (NSW) s 15']

Ratio Decidendi

The appellant's motion sought to achieve a different legal effect than the orders already made and did not meet the exceptional circumstances required to reopen or vary the judgment. The argument regarding protections from creditors could and should have been raised at the hearing of the substantive appeal. Making such an order would also involve important considerations under the Bankruptcy Act. Therefore, the motion to make an additional discretionary trust order was dismissed.

Court Disposition

Motion dismissed

Orders

  • ['Dismiss the notice of motion dated 26 March 2009 and filed 27 March 2009 in the appeal.' 'Order that the appellant pay the costs of the respondents of and in connection with the notice of motion.']