Madden v Madden

[2014] NSWCA 427

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Madden v Madden [2014] NSWCA 427

Hearing dates:

8/12/2014

Decision date:

09 December 2014

Before:

Emmett JA at [1];
Leeming JA at [40]

Decision:

Application for leave to appeal 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:

APPEAL AND NEW TRIAL - application for leave to re-open - application refused by primary judge - whether the primary judge made an error of discretion

Legislation Cited:

Bankruptcy Act 1966 (Cth)
Family Provision Act 1982 (NSW)

Cases Cited:

Autodesk Inc v Dyason (No 2) [1993] HCA 6; 176 CLR 300
Madden v Official Trustee in Bankruptcy [2014] FCA 446
Young v Hones (No 2) [2014] NSWCA 338 at [14]-[15]). Hones (No 2) [2014] NSWCA 338

Category:

Principal judgment

Parties:

Alexander William Madden (Applicant)
Michael Patrick Madden as the executor of the Estate of the late Margaret Rose Falloon (First Respondent)
Eve Karen Falloon (Second Respondent)
Chad Russell Falloon (Third Respondent)

Representation:

Counsel:
Mr J O'Sullivan (Applicant)
Mr RN O'Neill (Respondents)
Solicitors:
Abraham Legal Pty Ltd (Applicant)
Gibson Howlin Lawyers (First Respondent)
Coleman Grieg Lawyers (Second and Third Respondents)

File Number(s):

2014/245858

Publication restriction:

Nil

 Decision under appeal 

Citation:

Madden v Madden [2014] NSWSC 1098

Date of Decision:

2014-08-07 00:00:00

Before:

Stevenson J

File Number(s):

2011/25063

Judgment

1. EMMETT JA: By summons filed on 23 September 2014, Mr Alexander William Madden (Mr Madden) has applied for leave to appeal from orders made by a judge of the Equity Division refusing leave to Mr Madden to reopen his case in proceedings brought in the Equity Division against three defendants. On 5 June 2014, Mr Madden had applied for leave to reopen in circumstances where the evidence in the proceedings had closed, the parties had made final submissions to the primary judge and the primary judge had given judgment on 14 June 2012, having made findings on the basis of the evidence and the submissions. However, his Honour had not yet made final orders in the proceedings.

1. In the proceedings in the Equity Division, Mr Madden had claimed declaratory relief in relation to an alleged equitable interest in the assets of the estate of the his late wife, Mrs Margaret Falloon (the Deceased). The first defendant in the proceedings was Mr Michael Madden (the Executor), who is Mr Madden's son and is the executor of the will of the Deceased. The second and third defendants, Eve and Chad Falloon (together, the Beneficiaries), are children of the Deceased by an earlier marriage.

Factual Background

1. Mr Madden claimed that he had contributed the entirety of…