Gardiner v Gardiner (No 2) [2012] NSWSC 1025

Gardiner v Gardiner (No 2) [2012] NSWSC 1025

The Court was not under any material misapprehension about the defendant's liabilities: the evidence and balance sheet showed the trust had substantial liabilities to creditors and the Court had treated the debts as those of Matthew and his trust. Any possible additional asset did not make a material difference to the judgment, so the plaintiff's motion to set aside was dismissed. An occupation fee was justified because the plaintiff failed to vacate within the two months allowed; although some later health problems were accepted, the principal delay arose from the plaintiff's failure to act during the period allowed, and the move probably could have been completed by 5 July 2012.

Jurisdiction
Australia
Judgment Date
29 August 2012
Procedural Posture
Family Provision Consequential Orders / Post Judgment Motions Seeking to Set Aside a Family Provision Order and to Enforce Vacation of Estate Property
Outcome
The plaintiff's motion filed 4 April 2012 was dismissed with costs; the plaintiff was ordered to pay an occupation fee and the defendant's costs of the defendant's motion filed 28 May 2012.
Legal Topics
['setting Aside or Varying Judgment' 'misapprehension of Fact' 'occupation Fee' 'writ of Possession' 'estate Property']
['succession Law' 'family Provision' 'civil Procedure'] ['setting Aside or Varying Judgment' 'misapprehension of Fact' 'occupation Fee' 'writ of Possession' 'estate Property']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Family Provision Consequential Orders / Post Judgment Motions Seeking to Set Aside a Family Provision Order and to Enforce Vacation of Estate Property

Legal Issues

  1. 1 ["Whether the family provision judgment should be set aside under Uniform Civil Procedure Rules 2005, r 36.16(3A) because the Court allegedly misunderstood the defendant's liabilities and the Gardiner Family Trust loan position." 'Whether the plaintiff should pay an occupation fee for remaining in occupation of the estate property after the date fixed for vacation.' 'From what date any occupation fee should run.']

Ratio Decidendi

The Court was not under any material misapprehension about the defendant's liabilities: the evidence and balance sheet showed the trust had substantial liabilities to creditors and the Court had treated the debts as those of Matthew and his trust. Any possible additional asset did not make a material difference to the judgment, so the plaintiff's motion to set aside was dismissed. An occupation fee was justified because the plaintiff failed to vacate within the two months allowed; although some later health problems were accepted, the principal delay arose from the plaintiff's failure to act during the period allowed, and the move probably could have been completed by 5 July 2012.

Court Disposition

The plaintiff's motion filed 4 April 2012 was dismissed with costs; the plaintiff was ordered to pay an occupation fee and the defendant's costs of the defendant's motion filed 28 May 2012.

Orders

  • ["The plaintiff's motion of 4 April 2012 is dismissed with costs." 'The plaintiff is to pay an occupation fee of $595 per week from 5 July 2012 to the date he moves out of the premises.' "The plaintiff is to pay the defendant's costs of the defendant's motion of 28 May 2012." 'Order 6 is amended by inserting the...