Nicholls v Hall

Case [2007] NSWCA 356



New South Wales


Court of Appeal


CITATION: Nicholls v. Hall & Ors [2007] NSWCA 356
HEARING DATE(S): 31 October 2007
 
JUDGMENT DATE: 

13 December 2007
JUDGMENT OF: Mason P at 1; Hodgson JA at 1; McColl JA at 1
DECISION: 1. Appeal allowed. 2. Orders below set aside, and in lieu thereof order that the estate of the deceased be divided between the daughters of the deceased and the appellant in the proportions of two-sevenths to each daughter and one-seventh to the appellant. 3. Order that the costs of the respondents below and on appeal be paid out of the estate of the deceased on an indemnity basis. 4. Order that the costs of the appellant of the proceedings below be paid out of the estate of the deceased. 5. Order that the respondents pay the appellant’s costs of the appeal, and have a certificate under the Suitors’ Fund Act if otherwise entitled, and that they be reimbursed for these costs from the estate of the deceased.
CATCHWORDS: SUCCESSION - FAMILY PROVISION AND MAINTENANCE - Moral obligation or moral claim - Inadequate provision for proper maintenance - What is "adequate" and what is "proper" to be assessed having regard to objective circumstances, not just circumstances known to deceased - Relevance of "bare paternity".
LEGISLATION CITED: Family Provision Act 1982 s.9
CASES CITED: Fox v. Percy (2003) 214 CLR 118
Gorton v. Parks (1989) 17 NSWLR 1
Hughes v. Hughes (NSWCA 6 June 1989)
Kleinig v. Neal (No.2) [1981] 2 NSWLR 532
Pontifical Society for the Propagation of the Faith v. Scales (1962) 107 CLR 9
Singer v. Berghouse (No.2) (1994) 181 CLR 201
PARTIES: David Norman Nicholls - appellant/applicant
Deborah Anne Hall - 1st respondent/opponent
Gregory Robert Hall - 2nd respondent/opponent
Donna Louise Robinson - 3rd respondent/opponent
Gregory James Robinson - 4th respondent/opponent
Deanne Elizabeth Day - 5th respondent/opponent
Colin William Day - 6th respondent/opponent
FILE NUMBER(S): CA 49832/06
COUNSEL: Mr. L. Ellison SC for the appellant
Mr. J. Wilson SC with Mr. D. Liebhold for respondents
SOLICITORS: Turnbull Hill Lawyers, Charlestown for appellant
Kells The Lawyers, Shellharbour for respondents
LOWER COURT JURISDICTION: Supreme Court - Equity Division
LOWER COURT FILE NUMBER(S): SC 2998/05
LOWER COURT JUDICIAL OFFICER: Young CJ in Eq.
LOWER COURT DATE OF DECISION: 12 December 2006
LOWER COURT MEDIUM NEUTRAL CITATION: [2006] NSWSC 1377




                          CA 49832/06
                          ED 2998/05

                          MASON P
                          HODGSON JA
                          McCOLL JA

                          Thursday 13 December 2007
NICHOLLS V. HALL & ORS.
Headnote


      FACTS
      The appellant was born in 1959, the child of a brief relationship between his mother and a Mr. Kelly (the deceased). This relationship terminated before the appellant was born and the appellant did not meet the deceased until 1995, by which time the deceased had married and had three daughters.

      Since then, the only contact between the two had been 11 telephone calls, five of which were initiated by the appellant and six by the deceased, with the last one in September 2003 on the deceased’s 73rd birthday.

      The appellant was…

Continue reading Nicholls v Hall

Sign in free to access the full text

Details
AGLC
Nicholls v Hall [2007] NSWCA 356
Case
[2007] NSWCA 356
Decision Date

CaseChat Overview and Summary

The case of *Nicholls v Hall* concerned an appeal to the Court of Appeal of New South Wales regarding a claim for provision from the estate of a deceased person. The appellant, Mr. Nicholls, sought provision from the estate, which was contested by the deceased's daughters.

The primary legal issue before the Court of Appeal was whether the deceased had made adequate provision for the proper maintenance, education, and advancement in life of the appellant. This required the Court to consider the nature of the deceased's moral obligation or claim upon the estate, and to assess what constituted "adequate" and "proper" provision, taking into account objective circumstances beyond those known to the deceased. The relevance of "bare paternity" was also a consideration in determining the appellant's claim.

The Court of Appeal allowed the appeal, finding that the provision made for the appellant was inadequate. The Court reasoned that the assessment of adequate and proper provision must be based on objective circumstances, and that the deceased's moral obligation extended to the appellant. Consequently, the Court set aside the original orders and ordered that the estate be divided between the deceased's daughters and the appellant in specific proportions. The Court also made detailed orders regarding the costs of the proceedings, with costs generally to be paid out of the estate.

Orders

Orders of the court

1. Appeal allowed. 2. Orders below set aside, and in lieu thereof order that the estate of the deceased be divided between the daughters of the deceased and the appellant in the proportions of two-sevenths to each daughter and one-seventh to the appellant. 3. Order that the costs of the respondents below and on appeal be paid out of the estate of the deceased on an indemnity basis. 4. Order that the costs of the appellant of the proceedings below be paid out of the estate of the deceased. 5. Order that the respondents pay the appellant's costs of the appeal, and have a certificate under the Suitors' Fund Act if otherwise entitled, and that they be reimbursed for these costs from the estate of the deceased.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.