NSW Trustee and Guardian v Hull - [2011] NSWSC 1106

Supreme Court

New South Wales

Medium Neutral Citation: NSW Trustee & Guardian v Hull & Anor [2011] NSWSC 1106
Hearing dates: 14 & 15 September 2011
Decision date: 12 October 2011
Jurisdiction: Equity Division
Before: Hallen AsJ
Decision:
1. Upon enquiry, it is determined that the persons entitled on intestacy to succeed to the estate of Warren Scott Smith who died between 15 and 30 September 2008, are the second Defendant David Wayne Smith and his half brother, Daryl John Smith.
2. The Plaintiff is authorised to distribute the deceased's estate accordingly.
3. Unless the parties are able to agree, stand the matter over to a convenient date to argue how the burden of the costs of the proceedings is to be borne.

Catchwords: Plaintiff's application seeks an order for determination, by inquiry, of the identity of the next of kin of the deceased intestate - Proceedings brought pursuant to Uniform Civil Procedure Rules 2005 ("UCPR"), rule 54.3 - First Defendant asserts that he is the father of the deceased - Second Defendant appointed to represent the interests of the siblings of the half blood of the deceased
Legislation Cited: Evidence Act 1995
Fair Trading Act 1987
NSW Trustee and Guardian Act 2009
Probate & Administration Act 1898
Public Trustee Act 1913
Succession Act 2006
Succession Amendment (Intestacy) Act 2009
Trade Practices Act 1974 (Cth)
Uniform Civil Procedure Rules 2005
Cases Cited: A (A Minor); Re (Paternity: Refusal of Blood Test) [1994] 2 Fam Law R 463
Bellpac Pty Limited (Receivers and Managers Appointed) (In Liquidation) (No 2), Warner v Hung, in the matter of [2011] FCA 1123
Clarke v Mcfarlane [2008] NSWSC 432
Forster v Hunter New England Area Health Service [2010] NSWCA 106
Goodright v Moss (1777) 2 Cowp 591; (1777) 98 ER 1257
Harbour Port Consulting v NSW Maritime [2011] NSWSC 813
Jones v Dunkel [1959] HCA 8; 101 CLR 298
Lym International Pty Ltd v Marcolongo [2011] NSWCA 303
Moszko v Warshall (Supreme Court of Victoria, 20 February 1995, unreported)
Pennington (decd) (No 2), Re [1978] VR 617
Preston-Jones v Preston-Jones [1951] AC 391
Public Trustee v Solah [1999] NSWSC 660
Russell v Russell, [1924] AC 687; [1924] UKHL 1 (HL)
Watson v Foxman (1995) 49 NSWLR 315
West v Weston [1998] NSWSC 419
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48
Zahra v Francica [2009] NSWSC 1206
Texts Cited: Chief Justice J Spigelman 'Truth and the Law' (Speech delivered at the 2011 Sir Maurice Byers Lecture, 26 May 2011)
J H Wigmore, Wigmore On Evidence, 3rd ed, (1940), vol 2
Category: Principal judgment
Parties: NSW Trustee & Guardian (Plaintiff)
Lance Hull (first Defendant)
David Wayne Smith (second Defendant)
Representation: Counsel:
Mr B Townsend (Plaintiff)
Mr J Anderson (first Defendant)
Mr A L Hill (second Defendant)
Solicitors:
NSW Trustee & Guardian (Plaintiff)
Farrell Lusher (first Defendant)
Bartier Perry (second Defendant)

File Number(s): 2011/52466

Judgment

Background - Formal Matters

HIS HONOUR: These proceedings concern the estate of…

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.

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Details

Case: [2011] NSWSC 1106
Decision Date: 12 October 2011

CaseChat Overview and Summary

The case of NSW Trustee and Guardian v Hull involved a plaintiff seeking a court order to determine the identity of the next of kin of a deceased individual who died intestate. The proceedings were brought under rule 54.3 of the Uniform Civil Procedure Rules 2005. The first defendant claimed to be the deceased's father, while the second defendant was appointed to represent the interests of the deceased's half-siblings. The court was required to decide whether the first defendant's claim to be the deceased's father was substantiated and whether the second defendant had a legitimate interest in the proceedings.

The court analysed the evidence presented by the first defendant to support his claim of paternity, including genetic testing and affidavits from family members. The court also considered the statutory provisions and common law principles governing the determination of next of kin and the interests of half-siblings in intestate estates. Ultimately, the court determined that the first defendant's evidence was insufficient to establish paternity on the balance of probabilities. The court found that the second defendant had a legitimate interest in the proceedings as the representative of the deceased's half-siblings, who would be entitled to a share of the estate if the first defendant's claim was unsuccessful.

The court granted the plaintiff's application for an order for determination of the identity of the next of kin, but found that the first defendant was not the deceased's father. The court also determined that the second defendant had a legitimate interest in the proceedings and ordered that they be joined as a party. The final orders of the court are not detailed in the text.

Orders