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
Solle v Butcher [1950] 1 KB 671
Taylor v Johnson (1983) 151 CLR 422; [1983] HCA 5

Texts Cited:
Z Cowen, “Marriage, Matrimonial Causes, Legitimacy and Adoption: Miscellaneous Notes on Recent Australian Statutes” (1965) Australian Year Book of…

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 Daley v Donaldson

Details

AGLC: Daley v Donaldson [2022] NSWCA 96
Case: [2022] NSWCA 96
Decision Date: 17 June 2022

CaseChat Overview and Summary

Daley v Donaldson concerned an application for a family provision order by the biological son of the deceased, brought under the Succession Act 2006 (NSW). The parties had reached a compromise following mediation, but the executrix of the deceased's estate opposed the court making orders to give effect to this settlement. The primary judge declined to make the orders, leading to the present appeal.

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.

Citations

AGLC Citation

Daley v Donaldson [2022] NSWCA 96

Most Recent Citation

Richardson v Richardson [2022] ACTSC 363

Cases citing this decision · 11 of 11 shown

Wilcox v Chapple
[2024] NSWSC 1394

…Ltd (2016) 62 VR 359 D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12 Daley v Donaldson [2022] NSWCA 96 Derry v Peek [1889] UKHL 1 Douglas v Mikhael [2024] NSWCA 89 Farrow Mortgage Services Pty Ltd v Hogg (1995) 64 SASR 450 Fidelitas Shipping Co Ltd v V/O Exportchleb [1966] 1 QB 630 Field v Com…
Bowers v Matthews
[2024] NSWSC 1353

…provision order in those terms: s 98(3) Succession Act . It is obvious from the terms of s 98(3) that the power is discretionary: Daley v Donaldson [2022] NSWCA 96 ( Daley v Donaldson ) at [65]-[66] per Leeming JA (White and Mitchelmore JJA agreeing). 179. The approach of the Court in dealing with settlements of p…
M1 v R1
[2024] NSWCA 256 Para 13

…of those particular arguments below. However, it is important that I state at the outset, by reference to what Leeming JA stated in Daley v Donaldson [2022] NSWCA 96 at [52], that “it is no small thing to allege that a judge has acted in a way which is procedurally unfair” and such a submission “should not be made…
Director General, Community Services Directorate as Guardian for LN v LL
[2024] ACTSC 287

…Bartlett v Coomber [2008] NSWCA 100 Daley v Donaldson [2022] NSWCA 96 In the Estate of Rummer [2017] ACTSC 277 Jones v Moylan (1997) 18 WAR 492 Morris v Zanki (1997) 18 WAR 260 Re Guskett (1947) VLR 212 Re L [2000] NSWSC 721 Richardson v Richardson [2022] ACTSC 363; 20 ACTLR 37 Roberts v Stern [2017] ACTSC 182 Sin…
The Adoption of Edmund (a pseudonym)
[2024] NSWSC 803

…cendo Management Pty Ltd v Westpac Banking Corporation (1988) 19 NSWLR 40 Daley v Donaldson [2022] NSWCA 96 Graphite Energy Pty Ltd v Lloyd Energy Systems Pty Ltd [2014] NSWSC 1326 Hackett (a pseudonym) v Secretary, Department of Communities and Justice [2020] NSWCA 83 Halpin v Lumley General Insurance Ltd (2009)…
Jurak v Latham
[2023] NSWSC 1318 Para 178

…provision order in those terms: s 98(3) Succession Act . It is obvious from the terms of s 98(3) that the power is discretionary: Daley v Donaldson [2022] NSWCA 96 ( Daley v Donaldson ) at [65]-[66] per Leeming JA (White and Mitchelmore JJA agreeing).…
Rijven v Lynam and Rijven
[2023] ACTSC 265

…Daley v Donaldson [2022] NSWCA 96…
Wild v Meduri & Ors; Meduri & Anor v Neal & Anor; Meduri v Meduri & Ors
[2023] NSWSC 113 Para 10

…deration, the Court does not have jurisdiction to make an order: Daley v Donaldson [2021] NSWSC 1507; upheld on appeal in Daley v Donaldson [2022] NSWCA 96.…
Richardson v Richardson
[2022] ACTSC 363 Para 1

…the plaintiff was a child of the deceased person and hence it is clear that the jurisdictional requirement in s 7(1) was satisfied. Daley v Donaldson [2022] NSWCA 96 is an example of a case in which an equivalent jurisdictional requirement was not satisfied. In that case, by the time the matter was in the Court of…
Hancock v Hancock Prospecting Pty Limited
[2022] NSWCA 152 Para 43

…leges a denial of procedural fairness. It is no small thing to allege that a judge has acted in a way which is procedurally unfair: Daley v Donaldson [2022] NSWCA 96 at [52] per Leeming JA. The applicants contend that procedural unfairness arose in the present case from the primary judge’s failure to address the c…
Reid v Commonwealth Bank of Australia
[2022] NSWCA 134

…SWLR 614; [2001] NSWCA 440 Coroneo v Australian Provincial Assurance Association Ltd (1935) 35 SR (NSW) 391 Daley v Donaldson [2022] NSWCA 96 Directors &c of London and South Western Railway Co v Blackmore (1870) LR 4 HL 610 Doggett v Commonwealth Bank of Australia (2015) 47 VR 302; [2015] VSCA 351 Grant v John Gr…

View all 11 citing cases →

Cases cited in this decision · 17 of 17 shown

Daley v Donaldson
[2021] NSWSC 1507

…ion: Nil Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity Citation: [2021] NSWSC 1507 Date of Decision: 23 November 2021 Before: Hallen J File Number(s): 2020/00353698…
MZAPC v Minister for Immigration and Border Protection
[2021] HCA 17 Para 51

…procedural fairness which are material can be the subject of complaint: see, most recently, MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 95 ALJR 441 at [2]. There could be nothing procedurally unfair in Glenn being denied the opportunity to make submissions on a point of law based on ev…
Blendell v Blendell
[2020] NSWCA 154 Para 69

…h at [39]. The same has been reiterated in a very large number of cases, including by way of recent examples Blendell v Blendell; Blendell v Blendell [2020] NSWCA 154 at [4] and Liprini v Hale (2020) 103 NSWLR 275; [2020] NSWCA 130 at [112]. True it is that a court will, in the exercise of its discretion, give a me…
Liprini v Hale
[2020] NSWCA 130 Para 69

…cases, including by way of recent examples Blendell v Blendell; Blendell v Blendell [2020] NSWCA 154 at [4] and Liprini v Hale (2020) 103 NSWLR 275; [2020] NSWCA 130 at [112]. True it is that a court will, in the exercise of its discretion, give a measure of deference to a compromise reached between parties to lit…
Nash v Silver City Drilling (NSW) Pty Ltd
[2017] NSWCA 100 Para 40

…rds used in s 95(2)(d). Those words are absent from s 95(1). What was said by reference to authority in Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCA 100 at [20] is equally applicable here:…
Adoption of ESF
[2014] NSWSC 687 Para 41

…First instance decisions have proceeded on that basis, including Re D [2006] NSWSC 808 at [4] and Adoption of ESF [2014] NSWSC 687 at [17].…
Bartlett v Coomber
[2008] NSWCA 100 Para 68

…It is also well settled as a matter of authority. In Bartlett v Coomber [2008] NSWCA 100 at [84]-[86], Bryson JA, with whom Hodgson JA agreed, emphasised how the parties’ agreement could not by itself effect the alterations in property brought about by the making of a family provision order:…
Hayes v Marquis
[2008] NSWCA 10

…0 (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] HC…
Re D
[2006] NSWSC 808 Para 41

…First instance decisions have proceeded on that basis, including Re D [2006] NSWSC 808 at [4] and Adoption of ESF [2014] NSWSC 687 at [17].…
Application of A & B and the Adoption Act 2000
[2005] NSWSC 916 Para 42

…ction (3) avoids that result. This was an aspect of what was said by White J in Application of A and B and the Adoption Act 2000 (2005) 63 NSWLR 594; [2005] NSWSC 916 explaining the operation of the provision. It was also the mischief identified by the New South Wales Law Reform Commission, whose 1997 report Review…
Australia Estates Pty Ltd v Cairns City Council
[2005] QCA 328 Para 56

…td [2003] QB 679; [2002] EWCA Civ 1407 and in this country by the Queensland Court of Appeal in Australia Estates Pty Ltd v Cairns City Council [2005] QCA 328.…
Taylor v Johnson
[1983] HCA 5 Para 57

…veloped orally. In particular, no submissions were made as to the effect of the references to Solle v Butcher in Taylor v Johnson (1983) 151 CLR 422; [1983] HCA 5, which is surely the only substantial reason, if there be any valid reason, for continuing to apply a principle from the English Court of Appeal whic…
Ogden Industries Pty Ltd v Lucas
[1968] HCA 75 Para 47

…ncy gives rise to no rights in law at all. It is a mere possibility”, as Lord Upjohn expressed the position in Ogden Industries Pty Ltd v Lucas (1968) 118 CLR 32 at 37. So too the statutory power to alter the distribution of property upon death through making a family provision order does not give rise to anything c…
Masters v Cameron
[1954] HCA 72 Para 55

…to bear that risk (grounds 3-4). It was said that there was a binding agreement falling within the ratio of Masters v Cameron (1954) 91 CLR 353; [1954] HCA 72 which should have been enforced (ground 6). Aspects of these submissions were not without force, in light of paragraph 41 of Dawn’s affidavit.…
Federated Engine-Drivers and Firemen's Association of Australasia v Broken Hill Pty Co Ltd
[1911] HCA 31 Para 69

…be satisfied: see for example Federated Engine-Drivers and Firemen’s Association of Australasia v Broken Hill Pty Co Ltd (1911) 12 CLR 398 at 428; [1911] HCA 31 where it was said that “very slight inquiry may be adequate”. Glenn’s submission that the primary judge erred in regarding there to be a discretion to…
[1950] 1 KB 671
[1950] 1 KB 671 Para 28

…ement or compromise”. He then added, without expressing a view as to the status of Denning LJ’s statement of principle in Solle v Butcher [1950] 1 KB 671, that:…
[2003] QB 679
[2003] QB 679 Para 56

…misunderstanding, reasoning which has been disavowed in the United Kingdom in Great Peace Shipping Ltd v Tsavliris Salvage (International) Ltd [2003] QB 679; [2002] EWCA Civ 1407 and in this country by the Queensland Court of Appeal in Australia Estates Pty Ltd v Cairns City Council [2005] QCA 328.…

Legislation cited in this decision · 8

Adoption Act 2000 (NSW)
102, 95, 97 4 mentions (from Para 31)
Succession Act 2006 (NSW)
57, 59, 98 4 mentions (from Para 9)
Civil Procedure Act 2005 (NSW)
56, 73 3 mentions (from Para 15)
Evidence Act 1995 (Cth)
185 2 mentions (from Para 32)
State and Territorial Laws and Records Recognition Act 1901 (Cth)
18 2 mentions (from Para 32)
Adoption of Children Act 1964 (Qld)
1 mention (from Para 7)
Family Provision Act 1982 (NSW)
1 mention
Guardianship of Infants Act 1916 (NSW)
1 mention (from Para 2)

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 Solle v Butcher [1950] 1 KB 671 Taylor v Johnson (1983) 151 CLR 422; [1983] HCA 5
Texts Cited:	Z Cowen, “Marriage, Matrimonial Causes, Legitimacy and Adoption: Miscellaneous Notes on Recent Australian Statutes” (1965) Australian Year Book of…