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Discretion is not appealing

It is difficult to successfully appeal from a first instance Judge whose decision is discretionary.  This is highlighted in the recent Court of Appeal decision of Megerditchian v Khatchadourian[2020] NSWCA 229.   The Court of Appeal refused to further increase the amount ordered to be paid to the Appellant by way of family provision from her father’s estate. The Will had provided that she receive $10,000 and this was increased at first instance to $100,000.  The Court of Appeal confirmed that a family provision decision is a discretionary one and that it is up to the first instance Judge to determine what weight to afford each of the relevant s60(2) factors. As a result the restraints against appeal identified in House v The King(1936) 55 CLR 499; as restated in Norbis v Norbis (1986) 161 CLR 513 were applied and the appeal dismissed.  The daughter had sought provision of sufficient funds to buy herself a home.  The Judge had found her financially independent for 50 years and had concluded that “proper” provision did not require equality between siblings particularly in a situation where the son had remained close to his parents and contributed to their welfare. The Judge had also inferred that the daughter had financial resources (her children) an inference which the daughter argued strongly was wrong to make. The Court of Appeal disagreed. 

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