Nudd v Mannix [2010] NSWCA 127

Nudd v Mannix [2010] NSWCA 127

The Court had power under ss 15 and 24 of the Family Provision Act 1982 to make orders of the kind sought, including order 4, because those powers extend to ensuring payment of estate debts where necessary to give effect to family provision orders; separate administration proceedings were not required and UCPR 36.16(3) did not limit the independent powers in UCPR 36.16(1) and (2). However, because only $10,000 of the provision was immediately enforceable and the appellant's costs had not been assessed, the matter was stood over to allow the parties to reach a practical resolution before deciding whether to make or refuse the orders sought.

Jurisdiction
Australia
Judgment Date
01 June 2010
Procedural Posture
Consequential Orders in Succession Family Provision Proceedings / Notice of Motion Before the Referrals Judge After Court of Appeal Judgment, Seeking Consequential and Ancillary Orders
Outcome
Matter stood over to a date before Hodgson JA in about four weeks' time.
Legal Topics
['enforcement of Family Provision Orders' 'distributed Estate' 'notional Estate' "executor's Obligation to Preserve Estate Pending Appeal" 'power to Set Aside or Vary Orders' 'costs of Family Provision Proceedings']
['succession' 'family Provision' 'civil Procedure' 'estate Administration'] ['enforcement of Family Provision Orders' 'distributed Estate' 'notional Estate' "executor's Obligation to Preserve Estate Pending Appeal" 'power to Set Aside or Vary Orders' 'costs of Family Provision Proceedings']

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

Consequential Orders in Succession Family Provision Proceedings / Notice of Motion Before the Referrals Judge After Court of Appeal Judgment, Seeking Consequential and Ancillary Orders

Legal Issues

  1. 1 ['Whether the Court had power under ss 15, 24 and 28 of the Family Provision Act 1982 or otherwise to make orders requiring information and enabling enforcement after the estate had been distributed before appellate orders were made.' 'Whether separate administration proceedings were required to recover or deal with distributed estate assets.' "Whether UCPR 36.16(3) restricted the Court's powers under UCPR 36.16(1) and (2)." "Whether order 4 of the appellant's notice of motion should be made before costs had been assessed."]

Ratio Decidendi

The Court had power under ss 15 and 24 of the Family Provision Act 1982 to make orders of the kind sought, including order 4, because those powers extend to ensuring payment of estate debts where necessary to give effect to family provision orders; separate administration proceedings were not required and UCPR 36.16(3) did not limit the independent powers in UCPR 36.16(1) and (2). However, because only $10,000 of the provision was immediately enforceable and the appellant's costs had not been assessed, the matter was stood over to allow the parties to reach a practical resolution before deciding whether to make or refuse the orders sought.

Court Disposition

Matter stood over to a date before Hodgson JA in about four weeks' time.

Orders

  • ["Matter stood over to a date before Hodgson JA in about four weeks' time to give the parties a final chance to arrive at a sensible solution."]