Daley v Donaldson [2022] NSWCA 96

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Daley v Donaldson [2022] NSWCA 96 Hearing dates: 10 June 2022 Decision date: 17 June 2022 Before: Leeming JA at [1]; White JA at [76]; Mitchelmore JA at [77]. Decision: 1. Grant leave to appeal in terms of the notice of appeal contained in the White Folder, amended by including ground 5A "The primary judge erred in proceeding on the basis that, on the facts of this case, there was a discretion to be exercised". 2. Direct the applicant to file a notice of appeal, but otherwise dispense with the requirements of service. 3. Appeal dismissed, with costs. Catchwords: SUCCESSION – application for family provision order by biological son of deceased – approval of compromise under Succession Act 2006 (NSW) s 98 – parties entered into compromise following mediation – executrix opposed making orders giving effect to compromise – shortly after compromise reached, executrix came to believe applicant had been formally adopted – primary judge declined to make orders giving effect to settlement – whether adoption order caused applicant no longer to be a child of the deceased for purposes of s 57 of Succession Act – significance of executrix being on notice of the possibility of formal adoption – whether applicant remained a child of the deceased after being formally adopted – whether mistake as to basis of settlement warranted declining to make orders – appeal dismissed Legislation Cited: Adoption Act 2000 (NSW), ss 95, 97, 102 Adoption of Children Act 1964 (Qld) Civil Procedure Act 2005 (NSW), ss 56, 73 Evidence Act 1995 (Cth), s 185 State and Territorial Laws and Records Recognition Act 1901 (Cth), s 18 Succession Act 2006 (NSW), ss 57, 59, 98 Testator's Family Maintenance and Guardianship of Infants Act 1916 (NSW) Cases Cited: Adoption of ESF [2014] NSWSC 687 Application of A and B and the Adoption Act 2000 (2005) 63 NSWLR 594; [2005] NSWSC 916 Australia Estates Pty Ltd v Cairns City Council [2005] QCA 328 Bartlett v Coomber [2008] NSWCA 10 Blendell v Blendell; Blendell v Blendell [2020] NSWCA 154 Federated Engine-Drivers and Firemen's Association of Australasia v Broken Hill Pty Co Ltd (1911) 12 CLR 398; [1911] HCA 31 Great Peace Shipping Ltd v Tsavliris Salvage (International) Ltd [2003] QB 679; [2002] EWCA Civ 1407 In the Estate of Searle, Deceased [1963] SASR 303 Liprini v Hale (2020) 103 NSWLR 275; [2020] NSWCA 130 Masters v Cameron (1954) 91 CLR 353; [1954] HCA 72 MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 95 ALJR 441 Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCA 100 Ogden Industries Pty Ltd v Lucas (1968) 118 CLR 32 Re D [2006] NSWSC 808 Solle v Butcher [1950] 1 KB 671 Taylor v Johnson (1983) 151 CLR 422; [1983] HCA 5 Texts Cited: Z Cowen, "Marriage, Matrimonial Causes, Legitimacy and Adoption: Miscellaneous Notes on Recent Australian Statutes" (1965) Australian Year Book of International Law 23 M Davies, A Bell, P Brereton and M Douglas, Nygh's Conflict of Laws in Australia (10th ed LexisNexis Butterworths, 2020) New South Wales Law Reform Commission, Review of the Adoption of Children Act 1965 (NSW) (NSWLRC Rep 81) N Seddon and R Bigwood, Cheshire & Fifoot Law of Contract (11th Aust ed, 2017, LexisNexis Butterworths) Category: Principal judgment Parties: Glenn Eric Daley (Applicant) Dawn Donaldson (Respondent) Representation: Counsel: P W Bates (Applicant) M Daniels (Respondent)