(a) The Plaintiff’s notice of motion filed on 16 September 2021 be dismissed.
(b) The costs of the notice of motion be the Defendant’s costs in the cause, other than in relation to the costs of the parties of the submissions following the conclusion of the hearing, in respect of which the Plaintiff should pay the Defendant’s costs.
(c) The proceedings are listed for directions on 10 December 2021.
Catchwords:
CIVIL PROCEDURE – Section 73 Civil Procedure Act 2005 (NSW) - Power of court to determine questions in dispute between the parties to the proceedings as to whether and on what terms the proceedings have been compromised or settled between them – Plaintiff claims settlement reached - Evidence of Plaintiff’s adoption subsequently revealed – Whether settlement reached remains valid – Whether common mistake renders settlement void or voidable – Orders considered appropriate to give effect to determination
SUCCESSION – Substantive proceedings involve claim for family provision order under Ch 3 of the Succession Act 2006 (NSW) – Applicant alleged to be child of the deceased – Subsequent evidence given that Plaintiff was not a child of the deceased as he had been adopted by a third party
[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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AGLC
Daley v Donaldson [2021] NSWSC 1507
Case
[2021] NSWSC 1507
Decision Date
CaseChat Overview and Summary
The case of Daley v Donaldson involved the plaintiff, Daley, who sought a family provision order under the Succession Act 2006 (NSW) against the estate of a deceased individual. The defendant, Donaldson, contested the claim, asserting that Daley was not a child of the deceased but had been adopted by a third party. The matter was heard in the Supreme Court of New South Wales. The court was required to determine whether the proceedings had been settled or compromised between the parties and, if so, on what terms. Additionally, the court had to consider whether a common mistake rendered the alleged settlement void or voidable.
The court had to consider the application of section 73 of the Civil Procedure Act 2005 (NSW), which grants the court the power to determine questions in dispute between the parties regarding the status of any compromise or settlement. The evidence presented indicated that Daley had been adopted, leading to the argument that the settlement, if it had indeed occurred, was based on a common mistake. This raised questions about the validity of the settlement. The court had to balance the principles of finality in settlements with the need to ensure that any agreement was not based on a fundamental misunderstanding of the facts.
In its reasoning, the court found that the settlement between the parties was not valid due to the common mistake regarding Daley's parentage. The evidence of the adoption, which was not known at the time of the alleged settlement, rendered the settlement voidable. The court considered that the appropriate orders to give effect to its determination were to declare the settlement null and void, thereby allowing the substantive claim for a family provision order to proceed. The court ordered that the proceedings be treated as if no settlement had been reached, thereby permitting the merits of the claim to be determined on their true factual basis.