Application of Higgins [2023] NSWSC 689

Supreme Court New South Wales

Medium Neutral Citation: Application of Higgins [2023] NSWSC 689 Hearing dates: In Chambers Date of orders: 22 June 2023 Decision date: 22 June 2023 Jurisdiction: Equity Before: Hallen J Decision: The Court: (1) Orders, pursuant to s 134 of the Succession Act 2006 (NSW), that the whole of the estate of the deceased, be distributed, after payment of debts, funeral and testamentary expenses and costs, to the Plaintiff for her own use and benefit. (2) Orders that the Plaintiff's costs, calculated on the indemnity basis be paid, or retained, as the case may be, out of the estate of the deceased. Catchwords: SUCCESSION – Intestacy and distribution on intestacy – Indigenous person dies intestate - Intestate never married, died without spouse and without issue - Parents of intestate entitled under operation of rules of intestacy – Despite searches father of the intestate unable to be located – He had played no part in the life of the deceased - No other interested persons – Mother seeks an order for distribution of the intestate estate as a person claiming to be entitled to share in an intestate estate under the laws, customs, traditions and practices of the Indigenous community or group to which an Indigenous intestate belonged – Reliance upon Succession Act 2006 NSW, Part 4.4 – Scheme for distribution of the estate in accordance with the laws, customs, traditions and practices of the community or group to which the intestate belonged is to her as the mother of the Indigenous intestate - Distribution order made under Succession Act, s 134 Legislation Cited: Civil Procedure Act 2005 (NSW), ss 86, 90 Domicile Act 1979 (NSW), ss 8, 9 Succession Act 2006 (NSW), Pts 2.2, 4.4, 4.5 Uniform Civil Procedure Rules 2005 (NSW), r 36.1 Cases Cited: Application by NSW Trustee and Guardian (Estate of the late Marko Sijakovic) [2012] NSWSC 1532 Application of Harnett and Cutts [2016] NSWSC 427 Bailey v Polumbo [2020] NSWSC 1209 Bevan v Bevan [2013] FamCAFC 116 FDN [2011] QCAT 325 Gibbs v Capewell [1995] FCA 1048; (1995) 54 FCR 503 Hepburn v Skirving (1861) 9 WR 764 Iyengar v Commissioner of Taxation (2011) 85 ATR 924; [2011] AATA 856 JC [2012] QCAT 609 Kertesz v Kertesz [1954] VLR 195 Lewis v Balshaw (1935) 54 CLR 188; [1935] HCA 80 Mabo v Queensland (No 2) (1992) 175 CLR 1; [1992] HCA 23 McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 283 FCR 602; [2020] FCAFC 223 O'Donnell v O'Donnell [2022] NSWSC 1742 Potinger v Wightman (1817) 3 Mer 67 Re Benjamin; Neville v Benjamin [1902] 1 Ch 723 Re Berchtold; Berchtold v Capron [1923] 1 Ch 192 Re Crook (1936) 36 SR (NSW) 186 Re Estate Jerrard, deceased (2018) 97 NSWLR 1106; [2018] NSWSC 781 Re Estate Wilson, deceased (2017) 93 NSWLR 119; [2017] NSWSC 1 Re NBL [2019] NSWCATGD 5 Shaw v Wolf [1998] FCA 389; (1998) 83 FCR 113 The Estate of Alan Bruce Beeby [2020] NSWSC 1512 The Estate of Mark Edward Tighe (2018) 17 ASTLR 304; [2018] NSWSC 163 Udny v Udny (1869) LR 1 Sc & Div 441 Urquhart v Butterfield (1887) 37 Ch D 357 West v Weston [1998] NSWSC 419 Texts Cited: Australian Law Reform Commission, The Recognition of Aboriginal Customary Laws (Report 31, 1986) Vol 1 Bryan A Garner, Black's Law Dictionary (11th ed, 2014, Thomson Reuters) Martin Davies, Andrew Bell and Paul Le Gay Brereton, Nygh's Conflict of Laws in Australia (9th ed, 2014 Category: Principal judgment Parties: Emily Marlene Higgins (Plaintiff) Representation: Counsel: D Birch (Plaintiff)