Eatts v Gundy

Eatts, as the administrator and parent of the deceased, who died intestate, brought this appeal against Gundy, the biological son of the deceased's sister. Gundy argued that he was a surviving child of the deceased under Aboriginal tradition and sought a declaration that he inherit the entire estate. He also sought to make a claim for family provision under the Succession Act 1981. Eatts applied to strike out Gundy's originating application, arguing that Gundy had no arguable case as he was not a surviving child or issue of the deceased. The primary judge dismissed Eatts' application to strike out, prompting this appeal.

The court was required to determine whether there was an arguable case that Gundy was the deceased's surviving "issue" and "child" within the meaning of Part 2 of Schedule 2 and section 36A of the Succession Act. The court also needed to decide if there was an arguable case that Gundy was the deceased's "child" within the meaning of section 41(1) of the Succession Act, thereby making him an eligible applicant for family provision.

The court held that there was no arguable case that Gundy was the deceased's surviving "issue" or "child" within the meaning of the Succession Act. The court found that Gundy's claim was based solely on Aboriginal tradition and did not meet the legal criteria for succession or family provision under the Act. The appeal was allowed, and the orders made by the primary judge were set aside. Instead, Eatts' application to strike out Gundy's originating application was granted, and Gundy's application was struck out. Gundy was ordered to pay Eatts' costs of the originating application, including the costs of Eatts' application to strike out. The parties were at liberty to apply for orders in relation to reserved costs.