Tobias JA at 1; Bergin CJ in Eq at 2; Handley AJA at 76
DECISION:
1. Leave is granted under s 5 of the Felons (Civil Proceedings) Act to bring the appeal. 2. Leave to adduce additional evidence is refused. 3. Appeal is dismissed. 4. Appellant to pay the respondent's costs of the appeal, subject to any application for a different costs order to be made by the filing of a Notice of Motion within 14 days of today.
CATCHWORDS:
PROCEDURE – Leave sought to adduce additional evidence – Where evidence available at trial – Where high probability of different outcome not established - SUCCESSION – Family provision and maintenance – No provision made for appellant – Where appellant is son of deceased – Where appellant unilaterally abandoned relationship with deceased – Where appellant displayed hostility toward deceased – No contact between appellant and deceased for 14 years - Whether open to Trial Judge to find no “other special circumstances” present
BA Helmore (ed), The Law of Real Property in New South Wales (6th Ed, 1948) Lawbook Co, Sydney BA Helmore, (1930) 4(8) Australian Law Journal 258 AC Millard, GW Millard, BA Helmore (eds), Lawbook Co, The Law of Real Property in New South Wales (4th Ed, 1930) Melbourne SA Thompson, (1930) 4(6) Australian Law Journal 185
PARTIES:
Stuart Cecil Ford (Appellant) Natalie Ann Vaisey Simes (Respondent)
FILE NUMBER(S):
CA 40080 of 2009
COUNSEL:
L Ellison SC/R…
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.
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Details
AGLC
Ford v Simes [2009] NSWCA 351
Case
[2009] NSWCA 351
Decision Date
CaseChat Overview and Summary
In *Ford v Simes*, the appellant, the son of the deceased, sought to appeal a decision of the Trial Judge who had refused his claim for provision from the deceased's estate. The appellant had not received any provision under the will. The appeal was heard by Tobias JA, Bergin CJ in Eq, and Handley AJA.
The primary legal issues before the Court of Appeal were whether leave should be granted to adduce additional evidence, and whether the Trial Judge erred in finding that there were no "other special circumstances" justifying provision for the appellant under the relevant family provision legislation. The appellant also sought leave to bring the appeal under s 5 of the *Felons (Civil Proceedings) Act*.
The Court of Appeal refused leave to adduce additional evidence, noting that the evidence was available at trial and the appellant had not established a high probability of a different outcome. Regarding the family provision claim, the Court upheld the Trial Judge's finding that the appellant had unilaterally abandoned his relationship with the deceased, displayed hostility towards him, and had no contact for 14 years prior to the deceased's death. These factors were considered by the Court to be significant in determining whether any "other special circumstances" existed to warrant provision from the estate.
Consequently, the Court of Appeal granted leave to bring the appeal but dismissed the appeal itself. The appellant was ordered to pay the respondent's costs of the appeal, with a provision for any application for a different costs order to be made within 14 days.
Orders
Orders of the court
1. Leave is granted under s 5 of the Felons (Civil Proceedings) Act to bring the appeal.
2. Leave to adduce additional evidence is refused.
3. Appeal is dismissed.
4. Appellant to pay the respondent's costs of the appeal, subject to any application for a different costs order to be made by the filing of a Notice of Motion within 14 days of today.