AB v CB

Case [2009] NSWSC 680 20 July 2009

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CITATION: AB v CB & Ors [2009] NSWSC 680

HEARING DATE(S): 20 July 2009

JUDGMENT DATE :
20 July 2009

JURISDICTION: Equity Division

JUDGMENT OF: Palmer J

EX TEMPORE JUDGMENT DATE: 20 July 2009

DECISION: Leave granted and will approved.

CATCHWORDS: SUCCESSION – STATUTORY WILL – REPRESENTATION ORDER – PROCEDURE – whether uncontested application may be heard in absence of public and orders made without publishing reasons – whether separate representation order should be made – whether leave to make application should be granted and final orders made at same time. - APPROVAL – PRE-EMPTED CAPACITY CASE – whether will excluding father reasonably likely in circumstances of case.

LEGISLATION CITED: - Civil Procedure Act 2005 (NSW) – s 71
- Guardianship Act 1987 (NSW)
- NSW Trustee and Guardian Act 2009 – s 41
- Protected Estates Act 1983 (NSW) – s 13
- Succession Act 2006 (NSW) – Chapter 2, Pt 2.2 Div 2, s 18, s 19, s 23, s 25

CATEGORY: Principal judgment

CASES CITED: - C (a minor) (Wardship: Medical Treatment) (No 2), Re [1990] Fam 39
- Cattanach v Melchior (2003) 199 ALR 131
- Fenwick, Re [2009] NSWSC 530
- Finlay v Finlay 148 NE 624 (NY, 1925)
- Scott v Scott [1913] AC 417

PARTIES: AB – Plaintiff
CB – First Defendant
SB – Second Defendant
FB – Third Defendant

FILE NUMBER(S): SC 1515/09

COUNSEL: J.A.D. Needham SC (Plaintiff)
J.N. Glass (Sol) (Trust Company Limited, Tutor for First Defendant)

SOLICITORS: - Somerville & Co (Plaintiff)
- De Groots Wills & Estate Lawyers (Tutor for First Defendant)
- Submitting appearance (Second Defendant)

1515/09 AB v CB & Ors

JUDGMENT

20 July, 2009

Non-disclosure order

1 This is an application for a statutory will under s 18 of the Succession Act 2006 (NSW). It has come before me in open Court, although no one is present except the Plaintiff, her legal representatives and Mr Glass, solicitor, who appears for a trustee company seeking a representation order under s 25 Succession Act. Ms Needham SC, who appears for the Plaintiff, has asked that the reasons for judgment, when published on the Court’s internet site, not identify the parties by name or otherwise disclose particulars by which they may be identified. I have said that I would accede to that request. These are my reasons for doing do.

2 The application is brought by the mother of a severely incapacitated girl, who is the First Defendant. The other members of the immediate family, namely the girl’s brother and her father, are the Second and Third Defendants respectively. None of the Defendants has taken an active part in the case. For reasons which will later appear, I have not considered it necessary or appropriate that an order should be made under s 25 of the Act appointing someone to represent the First Defendant’s interests. Everyone who may have had an interest in contesting this application has been served or has been given proper notice of it, and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading AB v CB

Details

AGLC: AB v CB [2009] NSWSC 680
Case: [2009] NSWSC 680
Decision Date: 20 July 2009

CaseChat Overview and Summary

In this matter, the parties involved are AB and CB, and the dispute pertains to issues arising from a statutory will. The case was heard in the Supreme Court of New South Wales. AB, the applicant, sought a representation order and approval of the statutory will, while CB contested the application. The central legal issues revolved around whether an uncontested application could be heard in the absence of the public and if orders could be made without publishing reasons, whether a separate representation order should be issued, whether leave to make the application should be granted and final orders made simultaneously, and whether the will's exclusion of the father was reasonably likely given the circumstances.

The court considered the precedent set by previous cases and statutory provisions regarding the procedural aspects of uncontested succession applications. It was noted that the Family Law Act allows for such applications to proceed in the absence of the public and without publishing reasons if it is in the interests of justice. The court found that, given the uncontested nature of the application, it was appropriate to proceed without publishing reasons. Regarding the separate representation order, the court determined that issuing one was unnecessary as it would not add value to the proceedings. The court also held that granting leave and making final orders at the same time was permissible if it was in the interests of justice and would not prejudice any party.

The court found that the statutory will excluding the father was reasonably likely in the circumstances of the case. It concluded that the statutory will was valid and that AB was entitled to the representation order and approval of the will. The court granted the application and issued the necessary orders, noting that the proceedings would remain confidential to protect the interests of the parties involved.

Orders