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McBride v McBride

McBride v McBride

Case [2025] NSWSC 57 3 February 2025

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Supreme Court

New South Wales

Medium Neutral Citation: McBride v McBride [2025] NSWSC 57
Hearing dates: 3 February 2025
Date of orders: 3 February 2025
Decision date: 03 February 2025
Jurisdiction: Equity
Before: Meek J
Decision:
Orders made finalising family provision claim and, if leave be required pursuant to the Felons (Civil Proceedings) Act 1981 (NSW), granting leave nunc pro tunc to the plaintiff for the bringing, maintenance and settlement of the proceedings.

Catchwords:
SUCCESSION — Family provision — Standing — Leave to commence and maintain proceedings — Consideration of whether a plaintiff who commenced family provision proceedings prior to being convicted of, and serving imprisonment in respect of, serious Commonwealth offences is able to maintain and settle such proceedings whilst he is still in custody — Consideration of common law and Felons (Civil Proceedings) Act 1981 (NSW) regarding persons in custody in respect of serious offences — It is doubtful that the terminology of common law “felony offences” (capital or non-capital) and any disabling effects of convictions for such offences applies to the offences with which the defendant was convicted and in custody — There is some doubt that the Felons (Civil Proceedings) Act 1981 (NSW) applies to the Commonwealth offences to which the defendant was convicted and in custody — However, if so applicable leave ought be given nunc pro tunc to the plaintiff for the bringing, maintenance and settlement of the proceedings
SUCCESSION — Family provision — Orders designating property as notional estate — Operation of ss 63, 79 and 90 Succession Act explained
SUCCESSION — Family provision — Consent orders — The parties asked the Court to make consent orders in a family provision claim by a son of the deceased, currently in custody — Orders sought (and made) finalising proceedings and addressing standing issue

Legislation Cited:
Civil Procedure Act 2005 (NSW)
Crimes Act 1900 (NSW)
Crimes (Administration of Sentences) Act 1999 (NSW)
Crimes (Death Penalty Abolition) Amendment Act 1985 (NSW)
Crimes Legislation Amendment (Sentencing) Bill 1999 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Code Act 1995 (Cth)
Criminal Procedure Act 1986 (NSW)
Death Penalty Abolition Act 1973 (Cth)
Defence Act 1903 (Cth)
Defence (Special Undertakings) Act 1952 (Cth)
Family Provision Act 1982 (NSW)
Felons (Civil Proceedings) Act 1981 (NSW)
Imperial Acts Application Act 1969 (NSW) Interpretation Act 1987 (NSW)
Partition Ordinance 1931-1964
Piracy Punishment Act 1902 (NSW)
Succession Act 2006 (NSW)
Testator’s Family Maintenance and Guardianship of Infants Act 1916 (NSW)

Cases Cited:
Boatswain v Boatswain [2023] NSWSC 763
Burns Philp Trustee Co Ltd v Viney [1981] 2 NSWLR 216
Butler v State of New South Wales [2023] NSWSC 118
Cable v Sinclair [1788] NSW KR 7
Clayton v Clayton [2023] NSWSC 399
Cooper v State of New South Wales [2023] NSWSC 189
Dickson v Commissioner, Australian Federal Police [2020] NSWCA 125; (2020) 381 ALR 364
Dickson v Commonwealth Director of Public Prosecutions [2023] NSWCA 175
Dugan v Mirror Newspapers Ltd (1978) 142 CLR 583; [1978] HCA 54
Farrow v Nationwide News…

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 McBride v McBride

Details

AGLC: McBride v McBride [2025] NSWSC 57
Case: [2025] NSWSC 57
Decision Date: 03 February 2025

CaseChat Overview and Summary

The case of McBride v McBride involved a family provision claim brought by a son, currently in custody, against his deceased father's estate. The son argued that he was entitled to a greater share of the estate than what was allocated to him in the will. The dispute was heard in the Supreme Court of New South Wales. The central legal issues in the case were whether the son, who had been convicted of serious Commonwealth offences and was currently serving a prison sentence, could maintain and settle the family provision proceedings while still in custody, and whether the Felons (Civil Proceedings) Act 1981 (NSW) applied to Commonwealth offences. The court also needed to address the operation of sections 63, 79, and 90 of the Succession Act 2006 (NSW) in designating property as the notional estate.

The court found that there was doubt as to whether the common law concept of "felony offences" and the associated disabling effects applied to the Commonwealth offences for which the son was convicted and incarcerated. Similarly, there was some uncertainty about whether the Felons (Civil Proceedings) Act 1981 (NSW) extended to Commonwealth offences. However, the court considered that if the Act did apply, leave should be granted nunc pro tunc to the son for the bringing, maintenance, and settlement of the proceedings. The court further clarified the operation of sections 63, 79, and 90 of the Succession Act 2006 (NSW) in determining the notional estate. Ultimately, the parties requested and the court granted consent orders finalising the family provision claim and resolving the standing issue.

The court ordered that the son's family provision proceedings could continue and be settled while he remained in custody, subject to the conditions of the Felons (Civil Proceedings) Act 1981 (NSW) if applicable. The court also made consent orders that finalised the family provision claim and addressed the standing issue, ensuring that the son's right to bring the proceedings was preserved. These orders provided clarity and resolution to the parties involved, allowing the case to proceed in a manner that was fair and just under the circumstances.

Orders