NUDD v MANNIX [2009] NSWCA 327

NUDD v MANNIX [2009] NSWCA 327

The trial judge's discretion miscarried because he failed to take into account the six grandchildren's legacies, gave excessive weight to the sons' testamentary entitlements over the appellant's accommodation needs as de facto widow after a relationship of at least 19 years, and treated her evidence that she was happy living with her son as barring her need for independent accommodation. The Court therefore re-exercised the discretion and increased her legacy to $120,000, but could not make a Crisp order because that issue was not litigated at trial. The costs cap was within power and should stand, but the order disallowing the appellant's costs of the second day was unsupported because...

Jurisdiction
Australia
Judgment Date
15 October 2009
Procedural Posture
Family Provision Act Appeal / Appeal From Part of the Decision and Orders of Mc Laughlin as J Dated 21 November and 9 December 2008
Outcome
Appeal allowed with costs.
Legal Topics
["de Facto Widow's Claim for Provision" 'adequate Provision for Proper Maintenance' 'accommodation Needs' 'crisp Order for Flexible Life Estate' 'costs Capping Order' "suitor's Fund Act Certificate"]
['succession' 'family Provision' 'costs'] ["de Facto Widow's Claim for Provision" 'adequate Provision for Proper Maintenance' 'accommodation Needs' 'crisp Order for Flexible Life Estate' 'costs Capping Order' "suitor's Fund Act Certificate"]

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Procedural Posture

Family Provision Act Appeal / Appeal From Part of the Decision and Orders of Mc Laughlin as J Dated 21 November and 9 December 2008

Legal Issues

  1. 1 ["Whether the trial judge's assessment of provision for the appellant miscarried by failing to make adequate provision for her accommodation needs." 'Whether a Crisp order providing a flexible life estate could be made on appeal when it was not raised or litigated at trial.' "Whether the trial judge had power to cap the appellant's recoverable trial costs at $60,000." "Whether the order disallowing the appellant's costs of the second day of the hearing should stand."]

Ratio Decidendi

The trial judge's discretion miscarried because he failed to take into account the six grandchildren's legacies, gave excessive weight to the sons' testamentary entitlements over the appellant's accommodation needs as de facto widow after a relationship of at least 19 years, and treated her evidence that she was happy living with her son as barring her need for independent accommodation. The Court therefore re-exercised the discretion and increased her legacy to $120,000, but could not make a Crisp order because that issue was not litigated at trial. The costs cap was within power and should stand, but the order disallowing the appellant's costs of the second day was unsupported because...

Court Disposition

Appeal allowed with costs.

Orders

  • ['Orders of Associate Justice McLaughlin of 21 November and 9 December 2008 set aside.' 'In lieu thereof substitute an order that the appellant receive a legacy of $120,000 from the estate of the deceased.' "Subject to any payment under the orders that have been set aside interest on the appellant's legacy at legacy...