New South Wales
Court of Appeal
CITATION: Hampson v Hampson [2010] NSWCA 359 HEARING DATE(S): 16 November 2010
JUDGMENT DATE:
17 December 2010JUDGMENT OF: Giles JA at 1; Campbell JA at 3; Handley AJA at 117 DECISION: (1) Application to receive further evidence on appeal dismissed with costs.
(2) Appeal dismissed with costs.
[The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]CATCHWORDS: EQUITY – Estoppel by conduct – Proprietary estoppel – Husband leaves property to widow who dies and leaves property to all seven children equally – Youngest son claims proprietary estoppel in relation to approximately one third portion of estate based on assurances and encouragement of father – whether proprietary estoppel exists in circumstances where the appellant claims that there was an oral representation by appellant's father that land would be given to appellant if he lived there and renovated cottage on the land and where the appellant claims he has relied and acted on the representation – not sufficient for appellant only to establish claim against appellant's father and it is necessary also to establish claim against the testatrix – lack of evidence concerning representation by Testatrix in relation to her testamentary intentions or of son’s reliance on the representation – appeal against trial judge’s finding concerning proprietary estoppel rejected – PROCEDURE – Appeal – Powers of court – Application to receive further evidence in support of proprietary estoppel claim – Consideration of “special grounds” in s75A Supreme Court Act 1970 – consideration of tests in Akins v National Australia Bank (1994) 34 NSWLR 155 – Whether failure of solicitor to act upon instructions of client constitutes special grounds – In determining whether litigant has exercised “reasonable diligence” for the purpose of an application to admit further evidence on appeal, the litigant has the actions and inactions of his legal representative attributed to him – Appellant found not to have satisfied conditions in Akins – Reception of further evidence forbidden by s79A(8) – Consideration of additional discretionary reasons for rejection of application to receive further evidence – SUCCESSION – Family provision and maintenance – whether application governed by Family Provision Act 1982 or Chapter 3 Succession Act 2006 – time as at which to decide jurisdiction and quantum – principles upon which relief granted – appeal relating to failure of trial judge to find jurisdiction – process for calculating adequate provision, as amongst seven children of deceased – consideration of circumstances of each child – Principles governing appellate review of trial judge’s decision concerning jurisdictional question – no error in the determination of appellant's claim under the Family Provision Act – WORDS AND PHRASES – “special grounds” –…
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- AGLC
- Hampson v Hampson [2010] NSWCA 359
- Case
- [2010] NSWCA 359
- Decision Date
CaseChat Overview and Summary
The appeal concerned a claim of proprietary estoppel brought by the youngest son (the appellant) against his late father's estate, which had been left equally to all seven children. The appellant alleged that his father had promised him a portion of the land, approximately one-third of the estate, if he lived there and renovated a cottage. The appellant further claimed he had relied on this assurance. The appeal also involved a family provision claim.
The court was required to determine whether the appellant had established a claim for proprietary estoppel, not only against his father but also against his mother, the testatrix, who had subsequently inherited the property and left it to all seven children. Additionally, the court considered an application to adduce further evidence on appeal in support of the proprietary estoppel claim, specifically whether the failure of the appellant's solicitor to act on instructions constituted "special grounds" for admitting such evidence under s75A of the Supreme Court Act 1970. The court also reviewed the trial judge's decision regarding the family provision claim, including the applicable legislation and the process for calculating adequate provision among the beneficiaries.
Regarding proprietary estoppel, the court found that the appellant had not sufficiently established a claim against the testatrix, as there was a lack of evidence concerning her testamentary intentions or the appellant's reliance on any representation made by her. Consequently, the appeal against the trial judge's finding on proprietary estoppel was rejected. The application to adduce further evidence was also dismissed, as the appellant had not satisfied the "special grounds" test outlined in *Akins v National Australia Bank*, with the actions and inactions of his legal representative being attributed to him in assessing reasonable diligence. The court also noted that the reception of further evidence was forbidden by s79A(8) of the Supreme Court Act 1970. The appeal relating to the family provision claim was also dismissed, with the court finding no error in the trial judge's determination of the appellant's claim under the relevant legislation.
The application to receive further evidence on appeal was dismissed with costs, and the appeal itself was dismissed with costs.
The court was required to determine whether the appellant had established a claim for proprietary estoppel, not only against his father but also against his mother, the testatrix, who had subsequently inherited the property and left it to all seven children. Additionally, the court considered an application to adduce further evidence on appeal in support of the proprietary estoppel claim, specifically whether the failure of the appellant's solicitor to act on instructions constituted "special grounds" for admitting such evidence under s75A of the Supreme Court Act 1970. The court also reviewed the trial judge's decision regarding the family provision claim, including the applicable legislation and the process for calculating adequate provision among the beneficiaries.
Regarding proprietary estoppel, the court found that the appellant had not sufficiently established a claim against the testatrix, as there was a lack of evidence concerning her testamentary intentions or the appellant's reliance on any representation made by her. Consequently, the appeal against the trial judge's finding on proprietary estoppel was rejected. The application to adduce further evidence was also dismissed, as the appellant had not satisfied the "special grounds" test outlined in *Akins v National Australia Bank*, with the actions and inactions of his legal representative being attributed to him in assessing reasonable diligence. The court also noted that the reception of further evidence was forbidden by s79A(8) of the Supreme Court Act 1970. The appeal relating to the family provision claim was also dismissed, with the court finding no error in the trial judge's determination of the appellant's claim under the relevant legislation.
The application to receive further evidence on appeal was dismissed with costs, and the appeal itself was dismissed with costs.
Orders
Orders of the court
(1) Application to receive further evidence on appeal dismissed with costs.
(2) Appeal dismissed with costs.
[The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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