Cooper v Atkin

[2021] NSWCA 82

Court of Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Cooper v Atkin [2021] NSWCA 82

Hearing dates:

5 May 2021

Date of orders:

13 May 2021

Decision date:

13 May 2021

Before:

Payne JA; McCallum JA

Decision:

(1)Leave to appeal refused;

(2)Applicant’s notice of motion filed 3 May 2021 dismissed;

(3)Applicant to pay the respondents’ costs.

Catchwords:

SUCCESSION – family provision – claim by adult step-child of the deceased for provision under Ch 3 of the Succession Act 2006 (NSW) – whether primary judge did not make an order for provision in the applicant’s favour by reason of disentitling conduct – no question of principle

Legislation Cited:

Civil Procedure Act2005 (NSW), s 60

Succession Act 2006 (NSW), Ch 3, ss 57(1)(e), 59

Supreme Court Act 1970 (NSW), s 101(2)(r)(i)

Cases Cited:

Be Financial Pty Ltd as trustee for Be Financial Operations Trust v Das [2012] NSWCA 164

Burke v Burke [2015] NSWCA 195

Christie v Christie [2016] WASC 45

Hartnett and Hartnett v Taylor [2014] VSC 427

Jaycar Pty Ltd v Lombardo [2011] NSWCA 284

Lathwell v Lathwell [2007] WASC 83

Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206

The Age Company Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26

Category:

Principal judgment

Parties:

Kristi Cooper (Applicant)
Lynda Atkin (First Respondent)
Andrew Helgesen (Second Respondent)
Vanessa Nyassi (Third Respondent)

Representation:

Applicant in person

File Number(s):

2020/208039

Publication restriction:

Nil.

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity

Citation:

[2020] NSWSC 828

Date of Decision:

30 June 2020

Before:

Hallen J

File Number(s):

2018/374346

Judgment

1. THE COURT: Ms Kristi Cooper, the applicant, seeks leave to appeal from orders made by Hallen J dismissing a summons seeking a family provision order under Ch 3 of the Succession Act 2006 (NSW): [2020] NSWSC 828. His Honour described the case as “ruinous, and recriminatory, proceedings”.

2. The applicant is an adult step-child of Terence Helgesen, the deceased, who died on 18 November 2017. Lynda Atkin, the respondent, is the deceased’s sister. Without intending any disrespect, we will refer to the principal actors relevant to determining this case by their first names.

The primary judgment

3. The deceased was born in July 1938, in the United Kingdom, and he died in November 2017, in Port Macquarie, New South Wales, aged 79 years. Lynda was born in September 1948.

4. The deceased married Shirley Plater in 1960 and there were two children of their marriage, being Andrew, who was born in May 1966, and Vanessa, who was born in December 1972. The marriage of the deceased and Shirley ended in 1985.

5. The deceased lived in the United Kingdom but in 1984 visited Australia where he met the applicant’s mother, Diane Holmes. Diane had been married to Victor Cooper, and the applicant is the only child of their marriage. The applicant was born in March 1963. The deceased and Diane married in February 1986 and…