Ellis v Leeder [1951] HCA 44

PCL C AlE tare tarde = PIBCCR, Ge NG3ue OF

82 C.L.R.] OF AUSTRALIA. 645

C. at plses. 4H eth, t438.

{HIGH COURT OF AUSTRALIA.]

ELLIS . é 5 % i 3 3 5 x APPELLANT ; APPLICANT, AND LEEDER . : : : . RESPONDENT. RESPONDENT,

ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES.

Testator's Family Maintenance—Claim—Justification—Order—Bffectiveness—Duty H.C. ov A. and discretion of court—Appeal—Further evidence—Admittance by appellate 1951. court—Costs—Testator's Family Maintenance and Guardianship of Infants Act = ~~ 1916-1938 (N.8.W.) (No. 41 of 1916—No. 30 of 1938)—Hquity Act 1901-1947 S¥DNEY,

(N.S.W.) (No. 24 of 1901—No. 41 of 1947), s. 84. July 18, August 3.

If the Court thinks that a claim under the Testator's Family Maintenance and Guardianship of Infants Act 1916-1938 (N.S.W.) is justified it should seek yseticrnan, ways to give effect to it, Such a claim should only be refused where it is wr ii*™,

clear that it is impossible to make an effective order. Kitto JJ.

Upon an appeal against an order under the Testator's Family Maintenance and Guardianship of Infants Act 1916-1938, the appellate court should admit further evidence if that evidence would be likely materially to assist the

court in the discharge of its duty. So held by Dizon, Williams and Kitto JJ.

Observations by Jordan C.J. in In re the Will of Gilbert, (1946) 46 S.R. (N.S.W.) 318, at pp' 323, 324; 63 W.N. 176,%at pp. 179, 180 as to the proper approach of an appellate court on an appeal from an order under the Testator's Family Maintenance and Guardianship of Infants Act 1916-1938, approved by Dixon, Williams and Kitto JJ.

Decision of the Supreme Court of New South Wales (Full Court), reversed.

[Eprror's Nore :—On 14th November 1951 the Judicial Committee of the Privy Council granted special leave to appeal from the decision of the High Court.]