McGettigan v Coulter [2022] NSWCA 166

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: McGettigan v Coulter [2022] NSWCA 166 Hearing dates: 24 June 2022 Date of orders: 29 August 2022 Decision date: 29 August 2022 Before: Meagher JA at [1]; Leeming JA at [78]; White JA at [79] Decision: (1) Refuse an extension of the time for the applicant to file his notice of appeal. (2) Dismiss the appeal as incompetent. (3) Dismiss the applicant's motion filed 30 June 2022. (4) Order that the applicant pay the respondents' costs of the application to extend time and of the proposed appeal. Catchwords: SUCCESSION – probate and administration – where primary judge granted letters of administration to respondents in respect of deceased's 2000 will – where applicant challenged validity of that will and propounded 2016 will – where primary judge found applicant had no standing to challenge 2000 will and rejected substance of his challenge – where primary judge found 2016 will fabricated by applicant – whether evidence sufficient to support primary judge's conclusions CIVIL PROCEDURE – application to adduce further evidence in the appeal – where evidence sought to be led could have been obtained with reasonable diligence for use at trial – where no realistic probability that with benefit of evidence there would be different outcome in the proceedings – no "special grounds" established under Supreme Court Act 1970 (NSW) s 75A(8) – application dismissed Legislation Cited: Succession Act 2006 (NSW), ss 107, 111 Supreme Court Act 1970 (NSW), ss 75A(7), 75A(8), 75A(9) Uniform Civil Procedure Rules 2005 (NSW), rr 51.2, 51.6, 51.9, 51.16(2), 51.51 Cases Cited: Akins v National Australia Bank (1994) 34 NSWLR 155 In re Devoy; Fitzgerald v Fitzgerald [1943] St R Qd 137 Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 Nobarani v Mariconte (2018) 265 CLR 236; [2018] HCA 36 Searle v Commonwealth of Australia (2019) 100 NSWLR 55; [2019] NSWCA 127 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 Category: Principal judgment Parties: John Patrick McGettigan (Applicant) Glen Patrick Coulter (First Respondent) Rhonda Anne Coulter (Second Respondent) Representation: Counsel: