Olsen v Olsen

Case [2019] NSWCA 278


Court of Appeal


Supreme Court


New South Wales

  • Summary available
Medium Neutral Citation: Olsen v Olsen & Ors [2019] NSWCA 278
Hearing dates: 1 October 2019
Decision date: 19 November 2019
Before: Meagher JA at [1];
White JA at [2];
Emmett AJA at [85]
Decision:

Appeal dismissed with costs.

Catchwords:

APPEALS – actual or apprehended bias – unfavourable comments at pre-trial hearing – whether primary judge dissuadable from alleged fixed opinion – criticism of legal representatives – whether justified – whether indicative of bias

  SUCCESSION – family provision – claim by adult son – where deceased remarried – where deceased left entire estate to family from second marriage – deceased’s moral obligation to widow – discussion of role of freedom of testamentary disposition in family provision claims
Legislation Cited: Succession Act 2006 (NSW), ss 8, 59, 60, 91
Cases Cited: ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Friend v Brien [2014] NSWSC 613
Gorton v Parks (1989) 17 NSWLR 1
House v The King (1936) 55 CLR 499; [1936] HCA 40
In re Sinnott (1948) VLR 279
Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20
Jamal v Director of Public Prosecutions (NSW) [2019] NSWCA 121
Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48
Kleinig v Neal (No 2) [1981] 2 NSWLR 532
Lloyd-Williams v Mayfield (2005) 63 NSWLR 1; [2005] NSWCA 189
Mayfield v Lloyd-Williams [2004] NSWSC 419
Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48
Olsen v Olsen [2019] NSWSC 217
Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; [1962] HCA 19
Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98
Revell v Revell [2016] NSWSC 947
Sgro v Thompson [2017] NSWCA 326
Slack v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522
Squire v Squire [2019] NSWCA 90
Steinmetz v Shannon [2018] NSWSC 1090
Steinmetz v Shannon [2019] NSWCA 114; (2019) 368 ALR 161
Stott v Cook [1960] 33 ALJR 447
Taylor v Farrugia [2009] NSWSC 801
Vakuata v Kelly (1989) 167 CLR 568; [1989] HCA 44
Category:Principal judgment
Parties: Craig Olsen (Appellant)
Dean Richard Olsen (First Respondent)
Micheline Isabelle Olsen (Second Respondent)
Faye Beverley Olsen (Third Respondent)
Representation:

Counsel:
I Coleman SC with L Clarke (Appellant)
M Condon SC with D Robertson and Q Noakhtar (Respondents)

  Solicitors:
Next Legal & Conveyancing (Appellant)
Robertson Saxton Osborne (Respondents)
File Number(s): 2019/97536
 Decision under appeal 
Court or tribunal:
Supreme Court of New South Wales
Jurisdiction:
Equity Division
Citation:
[2019] NSWSC 217
Date of Decision:
15 March 2019
Before:
Pembroke J
File Number(s):
2017/155788

HEADNOTE

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

The appellant challenged a decision of a judge of the…

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AGLC
Olsen v Olsen [2019] NSWCA 278
Case
[2019] NSWCA 278
Decision Date

CaseChat Overview and Summary

The appeal concerned allegations of apprehended bias against the primary judge, and a claim for provision from the deceased's estate by the appellant, an adult son. The deceased had remarried and left his entire estate to his second wife and her children, leaving nothing to the appellant from his first marriage.

The court was required to determine whether the primary judge's comments during a pre-trial hearing indicated a fixed opinion or bias against the appellant or his legal representatives, thereby giving rise to an apprehension of bias. Additionally, the court had to consider whether the deceased had a moral obligation to provide for his adult son, notwithstanding his obligation to his second wife and her family, and the principle of testamentary freedom.

The court found that the primary judge's criticisms of the legal representatives, while perhaps sharp, were justified by the conduct of the proceedings and did not demonstrate a closed mind or bias. The court affirmed that freedom of testamentary disposition is a significant factor in family provision claims, and that while a deceased has a moral obligation to provide for their children, this obligation must be balanced against other moral claims, such as those owed to a surviving spouse. In this instance, the court concluded that the deceased had discharged any moral obligation to the appellant by reason of his substantial provision for his second wife.

The appeal was dismissed, and the appellant was ordered to pay the costs of the appeal.

Orders

Orders of the court

Appeal dismissed with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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