Bryan v Beveridge [2021] NSWSC 1406

Bryan v Beveridge [2021] NSWSC 1406

The plaintiff was an eligible person with demonstrable financial need who had received nothing from a substantial estate, and the evidence established that she was likely to receive no less than $220,206.62 at final hearing. The medical evidence, including the treating oncologist's recommendation and the Court expert's report describing Daratumumab as an available second line therapy, was sufficient at the interlocutory stage to justify provision for medical expenses. Given the size of the estate and absence of evidence that short-term finance had been refused, the Court did not accept that funds could not be raised by 1 December 2021 for the ordered interim provision.

Jurisdiction
Australia
Judgment Date
08 November 2021
Procedural Posture
Family Provision Application / Interlocutory Application for Interim Family Provision Order in the Equity Duty List
Outcome
Order for interim provision made; issues of enforcement reserved for further consideration.
Legal Topics
['interim Family Provision' 'succession Act 2006, S 62' 'notional Estate' 'estate Capacity to Pay Interim Provision' 'medical Expenses']
['succession Law' 'equity' 'civil Procedure'] ['interim Family Provision' 'succession Act 2006, S 62' 'notional Estate' 'estate Capacity to Pay Interim Provision' 'medical Expenses']

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Procedural Posture

Family Provision Application / Interlocutory Application for Interim Family Provision Order in the Equity Duty List

Legal Issues

  1. 1 ['Whether an interim family provision order should be made under Succession Act 2006, s 62.' 'Whether the balance of interim provision should be paid by 1 December 2021 or on or before 31 January 2022.' 'Whether the evidence established near-term financial need for medical treatment with Daratumumab.' 'Whether the estate had capacity to raise funds for interim provision in the short term.' 'Whether an interim family provision order can be made against notional estate.']

Ratio Decidendi

The plaintiff was an eligible person with demonstrable financial need who had received nothing from a substantial estate, and the evidence established that she was likely to receive no less than $220,206.62 at final hearing. The medical evidence, including the treating oncologist's recommendation and the Court expert's report describing Daratumumab as an available second line therapy, was sufficient at the interlocutory stage to justify provision for medical expenses. Given the size of the estate and absence of evidence that short-term finance had been refused, the Court did not accept that funds could not be raised by 1 December 2021 for the ordered interim provision.

Court Disposition

Order for interim provision made; issues of enforcement reserved for further consideration.

Orders

  • ['Subject to Order (3), order the first defendant to pay the sum of $220,206.62 to the plaintiff by way of an interim family provision order pursuant to Succession Act 2006, s 62.' 'Order that the first defendant pay $20,000 on or before 22 November 2021.' 'Order that the first defendant pay $160,000 by 1 December...