Hooper v Rowley - [2004] NSWCA 398

CITATION: Hooper v Rowley & 1 Or [2004] NSWCA 398

HEARING DATE(S): 02/11/04

JUDGMENT DATE:
11 November 2004

JUDGMENT OF: Sheller JA at 1; Ipp JA at 2; Bryson JA at 28

DECISION: Application for leave to appeal dismissed with costs.

CATCHWORDS: PRACTICE AND PROCEDURE - Whether leave to appeal required - Measure of value of the appellant's right for the purposes of s 101(2)(r)(ii) of the Supreme Court Act 1970 (NSW) - Where appeal would not settle any legal principle - Where litigation already consumed excessive proportion of estate - WILLS - Application under Family Provision Act 1982 (NSW) - Two stage process under Singer v Berghouse (1994) 181 CLR 201 - Whether appellant left without adequate provision for proper maintenance and advancement - Competing claim of second respondent - Where second respondent had lived in the property the subject of the claim all her life - Where whole of property had been left to the second respondent under the terms of the Will. D

LEGISLATION CITED: Family Provision Act 1982 (NSW)
Supreme Court Act 1970 (NSW) s 101(2)(r)

CASES CITED: Amos v Fraser (1906) 4 CLR 78
Attorney-General (Q); Ex rel Duncan v Andrews (1979) 145 CLR 573
Ballas v Theophilos [No 1] (1957) 97 CLR 186
Bladwell v Davis [2004] NSWCA 170
Oertel v Crocker (1947) 75 CLR 261
Singer v Berghouse (1994) 181 CLR 201

PARTIES :
Barbara Hooper (Appellant)
Mavis Rowley (First Respondent)
Patricia Museth (Second Respondent)

FILE NUMBER(S): CA 40456/03

COUNSEL: In Person (Appellant)
M Gorrick (First & Second Respondents)

SOLICITORS: In Person (Appellant)
L Rundle & Co (First & Second Respondents)

LOWER COURTJURISDICTION: Supreme Court - Equity Division

LOWER COURT FILE NUMBER(S): ED 2643/01

LOWER COURT
JUDICIAL OFFICER : McLaughlin M

CA 40456/03
ED 2643/01

SHELLER JA
IPP JA
BRYSON JA
Thursday 11 November 2004

BARBARA HOOPER v MAVIS ROWLEY & 1 OR

Judgment

1 SHELLER JA: I agree with Ipp JA.

2 IPP JA: The appellant brought proceedings under the Family Provision Act 1982 (NSW) claiming an order for provision for her maintenance, advancement and education out of the estate of her late mother, Ethel Elizabeth Museth (“the deceased”).

3 The deceased died on 21 November 2000, aged 89. She had six surviving children who include the appellant and the second respondent, Patricia Ann Elizabeth Museth. By her will the deceased gave the entirety of her estate to the second respondent.

4 By judgment dated 2 May 2003 Master McLaughlin dismissed the appellant’s claim.

5 The only significant asset in the deceased’s estate was a house known as “Old Toongabbie”. At the outset of the hearing the parties agreed that the value of the Old Toongabbie residence was $360,000.

6 The Master noted that, in upholding the terms of the will of the deceased, the respondents would be entitled to an order that their costs be paid out of the estate and, the appellant, should she be successful in the proceedings, would also be entitled to an order for her costs to…

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.

Continue reading Hooper v Rowley

Details

AGLC: Hooper v Rowley [2004] NSWCA 398
Case: [2004] NSWCA 398
Decision Date: 11 November 2004

CaseChat Overview and Summary

Hooper v Rowley concerned an application for leave to appeal from a decision of the Supreme Court of New South Wales. The dispute arose from an application made under the *Family Provision Act 1982* (NSW) concerning the estate of a deceased person. The appellant sought to appeal a prior decision, but the primary question before the Court of Appeal was whether leave to appeal was required, and if so, whether it should be granted.

The legal issues before the Court of Appeal included determining the measure of the value of the appellant's right for the purposes of section 101(2)(r)(ii) of the *Supreme Court Act 1970* (NSW), which governs when leave to appeal is required. This involved considering whether the proposed appeal would settle any significant legal principle and whether the litigation had already consumed an excessive proportion of the estate. Additionally, the court had to consider the underlying application under the *Family Provision Act 1982* (NSW), which involved the two-stage process outlined in *Singer v Berghouse* (1994) 181 CLR 201. This required assessing whether the appellant had been left without adequate provision for their proper maintenance and advancement, particularly in light of the competing claim of the second respondent, who had resided in the property in question her entire life and to whom the entire property had been bequeathed under the deceased's will.

The Court of Appeal reasoned that the appeal would not settle any important question of law or public interest, nor would it advance any principle of law. Furthermore, the court considered that the litigation had already consumed a disproportionate amount of the estate, and that granting leave to appeal would likely exacerbate this issue. Applying the principles for granting leave to appeal, the court concluded that the threshold for granting leave had not been met.

Consequently, the application for leave to appeal was dismissed with costs.

Orders

Orders of the court

Application for leave to appeal dismissed with costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Hooper v Rowley & 1 Or [2004] NSWCA 398
HEARING DATE(S):	02/11/04
JUDGMENT DATE:	11 November 2004
JUDGMENT OF:	Sheller JA at 1; Ipp JA at 2; Bryson JA at 28
DECISION:	Application for leave to appeal dismissed with costs.
CATCHWORDS:	PRACTICE AND PROCEDURE - Whether leave to appeal required - Measure of value of the appellant's right for the purposes of s 101(2)(r)(ii) of the Supreme Court Act 1970 (NSW) - Where appeal would not settle any legal principle - Where litigation already consumed excessive proportion of estate - WILLS - Application under Family Provision Act 1982 (NSW) - Two stage process under Singer v Berghouse (1994) 181 CLR 201 - Whether appellant left without adequate provision for proper maintenance and advancement - Competing claim of second respondent - Where second respondent had lived in the property the subject of the claim all her life - Where whole of property had been left to the second respondent under the terms of the Will. D
LEGISLATION CITED:	Family Provision Act 1982 (NSW) Supreme Court Act 1970 (NSW) s 101(2)(r)
CASES CITED:	Amos v Fraser (1906) 4 CLR 78 Attorney-General (Q); Ex rel Duncan v Andrews (1979) 145 CLR 573 Ballas v Theophilos [No 1] (1957) 97 CLR 186 Bladwell v Davis [2004] NSWCA 170 Oertel v Crocker (1947) 75 CLR 261 Singer v Berghouse (1994) 181 CLR 201
PARTIES :	Barbara Hooper (Appellant) Mavis Rowley (First Respondent) Patricia Museth (Second Respondent)
FILE NUMBER(S):	CA 40456/03
COUNSEL:	In Person (Appellant) M Gorrick (First & Second Respondents)
SOLICITORS:	In Person (Appellant) L Rundle & Co (First & Second Respondents)

LOWER COURTJURISDICTION:	Supreme Court - Equity Division
LOWER COURT FILE NUMBER(S):	ED 2643/01
LOWER COURT JUDICIAL OFFICER :	McLaughlin M