Barns v Barns [2003] HCA 9

HIGH COURT OF AUSTRALIA

GLEESON CJ,

GUMMOW, KIRBY, HAYNE AND CALLINAN JJ

Matter Nos A68 and A69 of 2002

KATHRYN FAY BARNS APPELLANT

AND

MALCOLM PHILLIP BARNS FIRST RESPONDENT

ALICE ELIZABETH BARNS SECOND RESPONDENT

MICHELLE LOUISE FISHER AND

RHIANNA KATE FISHER BY THEIR

NEXT FRIEND PETER CHARLES SYMES THIRD RESPONDENTS

Barns v Barns [2003] HCA 9

7 March 2003

A68 and A69 of 2002

ORDER

1. Appeals allowed. 2. Set aside the orders of the Full Court of the Supreme Court of South Australia dated 12 October 2001 and, in their place, order that the declaration in order 1 made by the Master be set aside and, in place thereof, declare that the Deed of 2 May 1996 does not operate to render incompetent an application by the appellant or the third respondents for an order for provision out of the estate of Mr Lyle Barns pursuant to the Inheritance (Family Provision) Act 1972 (SA). Otherwise, order that the appeal to the Full Court be dismissed. 3. Set aside the order of Nyland J made on 24 April 2002, dismissing the appellant's claim, and remit the claim for hearing by the Supreme Court. 4. Costs of the proceedings before Nyland J and of the disposition of the appellant's application to be determined by the Supreme Court. 5. Set aside the order of the Full Court of the Supreme Court of South Australia dated 6 March 2002 and order that the costs of the appeal to the Full Court and of each appeal to this Court of the appellant and all respondents be taxed or agreed on an indemnity basis and be paid out of the estate to his or her respective solicitors.

On appeal from the Supreme Court of South Australia

Representation:

Matter Nos A68 and A69 of 2002

S W Tilmouth QC with D M Haines QC and M F Crichton for the appellant (instructed by Boltons Lawyers)

M E Shaw QC with C S L Abbott for the first respondent in his personal capacity (instructed by von Doussas)