McGettigan v Coulter

[2022] NSWCA 166

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

McGettigan v Coulter [2022] NSWCA 166

Hearing dates:

24 June 2022

Date of orders:

29 August 2022

Decision date:

29 August 2022

Before:

Meagher JA at [1];
Leeming JA at [78];
White JA at [79]

Decision:

(1) Refuse an extension of the time for the applicant to file his notice of appeal.

(2) Dismiss the appeal as incompetent.

(3) Dismiss the applicant’s motion filed 30 June 2022.

(4) Order that the applicant pay the respondents’ costs of the application to extend time and of the proposed appeal.

Catchwords:

SUCCESSION – probate and administration – where primary judge granted letters of administration to respondents in respect of deceased’s 2000 will – where applicant challenged validity of that will and propounded 2016 will – where primary judge found applicant had no standing to challenge 2000 will and rejected substance of his challenge – where primary judge found 2016 will fabricated by applicant – whether evidence sufficient to support primary judge’s conclusions

CIVIL PROCEDURE – application to adduce further evidence in the appeal – where evidence sought to be led could have been obtained with reasonable diligence for use at trial – where no realistic probability that with benefit of evidence there would be different outcome in the proceedings – no “special grounds” established under Supreme Court Act 1970 (NSW) s 75A(8) – application dismissed

Legislation Cited:

Succession Act 2006 (NSW), ss 107, 111

Supreme Court Act 1970 (NSW), ss 75A(7), 75A(8), 75A(9)

Uniform Civil Procedure Rules 2005 (NSW), rr 51.2, 51.6, 51.9, 51.16(2), 51.51

Cases Cited:

Akins v National Australia Bank (1994) 34 NSWLR 155

In re Devoy; Fitzgerald v Fitzgerald [1943] St R Qd 137

Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378

Nobarani v Mariconte (2018) 265 CLR 236; [2018] HCA 36

Searle v Commonwealth of Australia (2019) 100 NSWLR 55; [2019] NSWCA 127

Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247

Category:

Principal judgment

Parties:

John Patrick McGettigan (Applicant)
Glen Patrick Coulter (First Respondent)
Rhonda Anne Coulter (Second Respondent)

Representation:

Counsel:

Applicant in person
J Brown with N Simone (Respondents)

Solicitors:

Field Lawyers (Respondents)

File Number(s):

2021/256597

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Civil

Citation:

[2021] NSWSC 1097; [2021] NSWSC 1356

Date of Decision:

31 August 2021

Before:

Slattery J

File Number(s):

2018/238970; 2018/174649; 2020/104101

HEADNOTE

[This headnote is not to be read as part of the judgment]

Brian McGettigan died on 17 April 2018, and his wife Beverley on 16 July 2018. The respondents, as executors of Beverley’s will, commenced probate proceedings seeking a grant of letters of administration of Brian’s estate with his will made on 19 January 2000 annexed. By that will Brian left his whole estate to Beverley.

The applicant, Brian’s brother, opposed the grant of letters of administration, contending that Brian’s 2000 will was a fabrication. By a cross-claim he…