Hitchcock v Pratt

The case of Hitchcock v Pratt involved a dispute concerning family provision and maintenance under the NSW Succession Act. The deceased, who died domiciled in the UK, left an estate that included properties located in New South Wales. The court was tasked with determining whether the statute could authorise a family provision order in respect of property situated outside NSW, and if it could be read down to avoid inconsistency with the Constitution. The applicants sought to have the UK estate subject to a family provision order in NSW, arguing that the deceased arguably left a potential notional estate in NSW due to the de facto control exercised by the trustee company over its subsidiaries' NSW properties.

The legal issues before the court included the validity of the NSW statute in authorising family provision orders for extra-territorial property, the interpretation and potential reading down of the statute to avoid constitutional conflict, and the applicability of the summary disposal provisions. The court also had to determine whether the deceased's de facto control over the trustee company's subsidiaries constituted a power to dispose of the NSW properties, and if a company director had the power to dispose of company assets under the NSW Succession Act.

In resolving these issues, the court found that the NSW statute was a valid exercise of the state’s legislative power, and it could not be read down to avoid inconsistency with the Constitution. The court held that the deceased did not arguably leave a potential notional estate in NSW, as the de facto control exercised by the trustee company over its subsidiaries' NSW properties did not amount to a power to dispose of those properties. Additionally, the court ruled that a director of a company did not have the power to dispose of the company's assets under the NSW Succession Act. The court dismissed the applicants' claims and made orders for the summary disposal of the proceedings.

The court's final orders were that the applicants' claims be dismissed, the proceedings be struck out, and costs be awarded to the respondents. The applicants were ordered to pay the respondents' costs on an indemnity basis, reflecting the court's determination that the applicants' claims were without merit.