The Application of Jill May Morison; In the matter of Neil Walter Morison [2022] NSWSC 1758

Supreme Court New South Wales

Medium Neutral Citation: The Application of Jill May Morison; In the matter of Neil Walter Morison [2022] NSWSC 1758 Hearing dates: In Chambers and on the papers Date of orders: 19 December 2022 Decision date: 19 December 2022 Jurisdiction: Equity Before: Hallen J Decision: See [86] Catchwords: SUCCESSION – Probate and administration – Where missing person last seen in 1972 – Extensive searches and enquiries conducted in an attempt to locate missing person, including of NSW Police, which attempts unsuccessful – Where missing person has not been located – No evidence that missing person is alive or dead – No contact with persons with whom the missing person would have been likely to communicate, including family members, being his mother, and his siblings – Whether presumption of death may be relied upon to make declaration that the missing person is not alive PRACTICE AND PROCEDURE – Declaratory relief sought where no contradictor – Whether declaration should be made that a person who has been missing for about 50 years, upon presumption of death, is no longer alive Legislation Cited: Civil Procedure Act 2005 (NSW) ss 56, 71 Probate and Administration Act 1898 (NSW) ss 40A, 40B Succession Act 2006 (NSW) s 129 Supreme Court Act 1970 (NSW) ss 11, 75 Cases Cited: Allman & Co v M'Cabe [1911] 2 IR 398 Application by Walsh (Estate of Robert Charles Walsh (deceased)) [2020] NSWSC 976; (2020) 20 ASTLR 45 Axon v Axon (1937) 59 CLR 395; [1937] HCA 80 CGU Insurance Ltd v Blakeley (2016) 259 CLR 339 at 346-347 [13]; [2016] HCA 2 Chard v Chard [1956] P 259 Elaraby v Minister for Immigration (2018) 332 FLR 353; [2018] FCCA 1101 Estate of Howard (1996) 39 NSWLR 409 Guo v Gao [2021] NSWSC 1059 Halbert v Mynar [1981] 2 NSWLR 659 Hassan v Sydney Local Health District (No 4) [2021] NSWCA 187 In re Margarete Maria White [2001] TASSC 7 In the Estate of Peter Dale Hills [2009] SASC 176 Kelly v Kelly (2019) 17 ASTLR 429; [2019] NSWSC 994 King Investment Solutions v Hussain (2005) 64 NSWLR 441; [2005] NSWSC 1076 Lashko v Lashko [2011] WASC 214 Le Grand v Criminal Justice Commission (No 2) [2001] QCA 432 M'Mahon v M'Elroy (1869) 5 IR Eq 1 Prudential Assurance Co v Edmonds (1877) 2 App Cas 487 Re Application for Grant of Presumption of Death; Ex Parte Craig Charles Park [2022] WASC 230 Re Curran [2010] VSC 455 Re Ryan [1990] 3 NZLR 91 Robinson v Robinson (2020) 102 NSWLR 1; [2020] NSWCA 4 Ross v NRMA Life Limited (1993) 7 ANZ Insurance Cases ¶61-170 The Estate of Alan Bruce Beeby [2020] NSWSC 1512 Watson v England (1844) 60 ER 266 Texts Cited: David Liebhold, Stephen Janes, Paul Studdert, Wills, Probate and Administration Law in New South Wales (2nd ed, 2019, Thomson Reuters) Leslie G Handler and Richard Neal, Mason and Handler Succession Law and Practice NSW (LexisNexis Butterworths) R A Sundberg, Griffith's Probate Law and Practice in Victoria (3rd ed, 1983, Law Book Co) Category: Principal judgment Parties: Jill May Morison (Plaintiff) Representation: Counsel: T Catanzariti (Plaintiff)