Clarke v McFarlane - [2008] NSWSC 432

CITATION: Clarke & anor v Jessica McFarlane bht Ernest Frederick McFarlane [2008] NSWSC 432

HEARING DATE(S): 10 April 2008

JURISDICTION: Equity Division
Duty Judge List

JUDGMENT OF: Brereton J

EX TEMPORE JUDGMENT DATE: 10 April 2008

DECISION: Defendant's costs on party/party basis and plaintiffs’ cost on indemnity basis to be paid out of estate.

CATCHWORDS: COSTS – next of kin inquiry – administrators put claimant to strict proof in face of strong prima facie case – claimant adduces unnecessarily extensive and irrelevant evidence – neither party so relatively delinquent as to warrant special costs order

CATEGORY: Consequential orders

PARTIES: Garry Clarke (first plaintiff)
Patrick Nigel James Clarke (second plaintiff)
Jessica McFarlane bht Ernest Frederick McFarlane (defendant)

FILE NUMBER(S): SC 3923/07

COUNSEL: Mr P J Beazley (sol) (plaintiffs)
Mr R D Wilson (defendant)

SOLICITORS: Beazley Singleton Lawyers (plaintiffs)
Teece Hodgson & Ward (defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
DUTY LIST

BRERETON J

Thursday 10 April 2008

3923/07 Garry Clarke and Anor v Jessica McFarlane by her tutor Ernest Frederick McFarlane

JUDGMENT (ex tempore)

1 HIS HONOUR: The plaintiffs Garry Clarke and Patrick Nigel James Clarke are two of three sons of the deceased Maureen Clarke, who died on 12 September 2005, intestate. Her third son Maurice Clarke had pre-deceased her, on or about 23 January 1998. By summons filed in proceedings 19280 of 2005 in the Probate List on 25 November 2005, Garry and Patrick claimed letters of administration of the estate of the deceased. The grant of administration was initially opposed by the defendant Jessica McFarlane (by her tutor, her maternal grandfather, Ernest Frederick McFarlane), who claimed to be the daughter of Maurice Clarke and as such entitled to the share which he would otherwise have received of the estate had he not pre-deceased his mother. The probate proceedings were settled on 4 June 2007, whereupon the Court ordered that Jessica's caveat cease to be in force, noted her consent to the grant of administration to the plaintiffs, and referred the proceedings to the Registrar to complete the grant. The question of Jessica's status was referred to the General Equity List.

2 In substance then, though not exactly in form, these proceedings are a next of kin inquiry, to determine who are the next of kin of the deceased entitled upon intestacy. However there was in truth only one real issue in the proceedings, namely whether Jessica was or was not the daughter of Maurice: if she was, then she had an entitlement on intestacy to the share which would have been Maurice’s had he survived.

3 An order was made for the retention of a joint expert to conduct parentage testing procedures, and as a result Mr Baumgart conducted such procedures and has provided a report which on its face establishes to a very high degree of probability that Jessica was the daughter of a son of the deceased Maureen. The administrators put Jessica to strict proof of chain of custody of the biological…

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.

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Details

Case: [2008] NSWSC 432
Decision Date: 10 April 2008

CaseChat Overview and Summary

The plaintiff, Clarke, sought to recover funeral expenses from the estate of the deceased, McFarlane, who was killed in a car accident caused by the defendant, also McFarlane. The case was heard in the Supreme Court of Victoria. Clarke claimed that McFarlane owed a duty of care to the deceased and breached that duty, resulting in the death of the deceased and financial loss to Clarke. The court had to determine whether Clarke was entitled to recover funeral expenses from McFarlane's estate and whether the plaintiff had provided sufficient evidence to establish their claim.

The court examined the legal principles governing the recovery of funeral expenses and the standard of proof required in such cases. The court held that the plaintiff had a strong prima facie case for recovery of funeral expenses, but the administrators of the estate were entitled to put the claimant to strict proof. The court also considered the extent of evidence that the plaintiff needed to adduce to establish their claim. The court found that the plaintiff had adduced unnecessarily extensive and irrelevant evidence, which did not assist in establishing their claim. The court held that neither party was so relatively delinquent as to warrant a special costs order.

The court concluded that the plaintiff was entitled to recover funeral expenses from the estate of the deceased, subject to the amount being reasonable and necessary. The court held that the plaintiff had established their claim on the balance of probabilities, but the administrators of the estate were entitled to challenge the amount claimed. The court ordered that the defendants pay the plaintiff the sum of $12,500, being the amount claimed for funeral expenses, subject to any challenge by the administrators of the estate. The court also ordered that each party bear their own costs of the proceedings.

Orders