Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Daley v Donaldson [2022] NSWCA 96 Hearing dates: 10 June 2022 Decision date: 17 June 2022 Before: Leeming JA at [1];
White JA at [76];
Mitchelmore JA at [77].Decision: 1. Grant leave to appeal in terms of the notice of appeal contained in the White Folder, amended by including ground 5A “The primary judge erred in proceeding on the basis that, on the facts of this case, there was a discretion to be exercised”.
2. Direct the applicant to file a notice of appeal, but otherwise dispense with the requirements of service.
3. Appeal dismissed, with costs.
Catchwords: SUCCESSION – application for family provision order by biological son of deceased – approval of compromise under Succession Act 2006 (NSW) s 98 – parties entered into compromise following mediation – executrix opposed making orders giving effect to compromise – shortly after compromise reached, executrix came to believe applicant had been formally adopted – primary judge declined to make orders giving effect to settlement – whether adoption order caused applicant no longer to be a child of the deceased for purposes of s 57 of Succession Act – significance of executrix being on notice of the possibility of formal adoption – whether applicant remained a child of the deceased after being formally adopted – whether mistake as to basis of settlement warranted declining to make orders – appeal dismissed
Legislation Cited: Adoption Act 2000 (NSW), ss 95, 97, 102
Adoption of Children Act 1964 (Qld)
Civil Procedure Act 2005 (NSW), ss 56, 73
Evidence Act 1995 (Cth), s 185
State and Territorial Laws and Records Recognition Act 1901 (Cth), s 18
Succession Act 2006 (NSW), ss 57, 59, 98
Testator’s Family Maintenance and Guardianship of Infants Act 1916 (NSW)
Cases Cited: Adoption of ESF [2014] NSWSC 687
Application of A and B and the Adoption Act 2000 (2005) 63 NSWLR 594; [2005] NSWSC 916
Australia Estates Pty Ltd v Cairns City Council [2005] QCA 328
Bartlett v Coomber [2008] NSWCA 10
Blendell v Blendell; Blendell v Blendell [2020] NSWCA 154
Federated Engine-Drivers and Firemen’s Association of Australasia v Broken Hill Pty Co Ltd (1911) 12 CLR 398; [1911] HCA 31
Great Peace Shipping Ltd v Tsavliris Salvage (International) Ltd [2003] QB 679; [2002] EWCA Civ 1407
In the Estate of Searle, Deceased [1963] SASR 303
Liprini v Hale (2020) 103 NSWLR 275; [2020] NSWCA 130
Masters v Cameron (1954) 91 CLR 353; [1954] HCA 72
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 95 ALJR 441
Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCA 100
Ogden Industries Pty Ltd v Lucas (1968) 118 CLR 32
Re D [2006] NSWSC 808
Texts Cited: Z Cowen, “Marriage, Matrimonial Causes, Legitimacy and Adoption: Miscellaneous Notes on Recent Australian Statutes” (1965) Australian Year Book of…
Continue reading Daley v Donaldson
Sign in free to access the full text
- AGLC
- Daley v Donaldson [2022] NSWCA 96
- Case
- [2022] NSWCA 96
- Decision Date
CaseChat Overview and Summary
The central legal issues before the Court of Appeal were whether a formal adoption order, made after the applicant's birth, caused him to no longer be considered a "child" of the deceased for the purposes of the Succession Act 2006 (NSW), and whether the executrix's subsequent belief about this adoption warranted the primary judge declining to enforce the settlement. The court also considered whether a mistake as to the basis of the settlement justified refusing to make the orders.
The Court of Appeal held that the adoption order did not cause the applicant to cease being a child of the deceased within the meaning of the Act, particularly as the executrix had been aware of the possibility of adoption. The court reasoned that the executrix's belief, even if mistaken, did not provide a sufficient basis to decline to make orders giving effect to the compromise. The appeal was dismissed.
Orders
Orders of the court
1. Grant leave to appeal in terms of the notice of appeal contained in the White Folder, amended by including ground 5A “The primary judge erred in proceeding on the basis that, on the facts of this case, there was a discretion to be exercised”.
2. Direct the applicant to file a notice of appeal, but otherwise dispense with the requirements of service.
3. Appeal dismissed, with costs.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.