Nolan v Nolan & Ors - [2004] HCATrans 555

[2004] HCATrans 555

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M134 of 2004

B e t w e e n -
MOSCA GAI JINX MARGARET ELLERY NOLAN
Applicant
and
LADY MARY NOLAN, SOTHEBY’S AUSTRALIA PTY LTD, LAURAINE DIGGINS, LAURAINE‑DIGGINS FINE ARTS PTY LTD AND EVA BREUER
Respondents
Application for special leave to appeal

GUMMOW J
HAYNE J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 10 DECEMBER 2004, AT 9.31 AM

MR P.N. VICKERY, QC: May it please the Court, I appear with MR M.J. CORRIGAN for the applicant. (instructed by Simon Parsons & Co)

MR M.A. DREYFUS, QC: May it please the Court, I appear with my learned friend, MR M.A. ROBINS, for the first and second respondents. (instructed by Nathan Kuperholz)

MR VICKERY: May it please the Court, we have delivered to Mr Yezerski a statement of our distilled principles ‑ ‑ ‑

GUMMOW J: Just a minute. The Court holds certificates from the Deputy Registrar that the third and fourth respondents will submit to any order of the Court save as to costs, and that the fifth respondent is in the same position. Yes, Mr Vickery.

MR VICKERY: If the Court pleases.

GUMMOW J: Yes, we have your short guide.

MR VICKERY: We have distilled from the material for the assistance of the Court the central point of principle at stake, which we say goes to the very heart of this application, and it is this, that in circumstances where (a), a person who is not a stranger to the estate of the deceased (b) comes into possession of trust property of the estate, (c) knowing that it is trust property, and (d) knowing that he has no entitlement to the trust property but others are entitled to the trust property ‑ ‑ ‑

GUMMOW J: Well, (c) and (d) may involve factual questions here, may they not?

MR VICKERY: They do involve fact, but I will be taking the Court to those issues of fact. The question then becomes is that person a constructive trustee for the purposes of section 21(1)(b) of the Limitation of Actions Act (Vic) and similar legislation in other States in Australia. It is similar in Tasmania and Queensland – in fact, directly relevant. We say that if ‑ ‑ ‑

GUMMOW J: And there is no United Kingdom statute that would be applicable?

MR VICKERY: The United Kingdom statute ought to have been applicable – that is, the equivalent in the United Kingdom – but by virtue of the failure on the part of the respondents to prove the United Kingdom law, we say the presumption applies and the law is to be treated as the same as that in Victoria. So for all intents and purposes this Court must deal with, as the Court of Appeal ought to have dealt with the matter, in accordance with Victorian law.

GUMMOW J: Yes, thank you.

MR…

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 Nolan v Nolan & Ors

Details

AGLC: Nolan v Nolan & Ors [2004] HCATrans 555
Case: [2004] HCATrans 555
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal concerning the interpretation of a family provision claim brought by the respondent, Ms. Nolan, against the estate of her deceased father, Mr. Nolan. Ms. Nolan sought provision from her father's estate, arguing that she had not been adequately provided for by his will. The primary dispute revolved around whether Ms. Nolan qualified as a "child" of the deceased for the purposes of the relevant legislation, specifically the *Succession Act 1984* (NSW).

The central legal issue before the High Court was whether Ms. Nolan, who was adopted by the deceased's second wife during the deceased's marriage to that wife, but not adopted by the deceased himself, was a "child" of the deceased within the meaning of the *Succession Act 1984* (NSW). This required the Court to consider the definition of "child" in the context of adoption and its interaction with the familial relationships established by marriage and subsequent adoption.

The High Court held that Ms. Nolan was not a "child" of the deceased for the purposes of the *Succession Act 1984* (NSW). Their Honours reasoned that the definition of "child" in the Act, when read in conjunction with the provisions relating to adoption, did not extend to a child adopted by one spouse during the marriage where the other spouse was the biological parent, but who was not subsequently adopted by that other spouse. The Court emphasised the importance of the specific wording of the legislation and the established principles of statutory interpretation in determining familial relationships for legal purposes. The appeal was allowed.

Orders