Hull v Smith

[2012] NSWCA 183

Court of Appeal

New South Wales

Case Title:

Hull v Smith

Medium Neutral Citation:

[2012] NSWCA 183

Hearing Date(s):

18/06/2012

Decision Date:

18 June 2012

Jurisdiction:

Before:

Young AJA

Decision:

Motion for extension of time dismissed with costs.

[Note: 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:

PRACTICE AND PROCEDURE - Application to extend time for filing a Notice of Appeal - whether appeal has reasonable prospects of success - held no - no matter of principle

Legislation Cited:

Cases Cited:

Jackamarra v Krakouer [1998] HCA 207; 195 CLR 516
Tomko v Palasty (No 2) [2007] NSWCA 369

Texts Cited:

Category:

Procedural and other rulings

Parties:

Lance Hull (Applicant)
David Wayne Smith (First Respondent)
NSW Trustee & Guardian (Second Respondent)

Representation

- Counsel:

Counsel:
J Anderson (Applicant)
V A Hartstein (First Respondent)
B Townsend (Second Respondent)

- Solicitors:

Solicitors:
Farrell Lusher (Applicant)
Bartier Perry (First Respondent)
NSW Trustee & Guardian (Second Respondent)

File number(s):

2012/98360

Decision Under Appeal

- Court / Tribunal:

Supreme Court

- Before:

Hallen AsJ

- Date of Decision:

12 October 2011

- Citation:

NSW Trustee & Guardian v Hull & Anor [2011] NSWSC 1106

- Court File Number(s)

2011/52466

Publication Restriction:

JUDGMENT - EX TEMPORE

1. This is a motion by a person who was unsuccessful in the Equity Division in what might be called a Next of Kin Inquiry with respect to the late Warren Scott Smith. Mr Smith, whom I will call the deceased, was one of three children of a person whom I can call Carol. It would appear that Carol's three children each had different fathers. Warren Smith died intestate and the NSW Trustee and Guardian is the administrator of his estate, an estate which, at least before legal proceedings, appears to have been worth about $600,000.

2. Under the Probate and Administration Act 1898 (NSW) this could mean that the parent of Warren Smith would take the estate if he or she survived Warren Smith; otherwise his two half brothers would take a moiety each. One of those half brothers is a disabled person.

3. The matter came before Hallen AsJ. The present applicant, Mr Hull, alleged that he was the father and, as the father of Warren Smith and as Carol had predeceased Warren Smith he, Mr Hull, would take the whole of the estate. The learned Associate Judge considered the evidence that was before him. I will not deal with that evidence in detail but it included the fact that Mr Hull had denied paternity on a number of occasions close to the birth of Warren Smith, however Carol had asserted on a number of occasions that he was the father.