McBride v McBride [2025] NSWSC 57

Supreme Court New South Wales

Medium Neutral Citation: McBride v McBride [2025] NSWSC 57 Hearing dates: 3 February 2025 Date of orders: 3 February 2025 Decision date: 03 February 2025 Jurisdiction: Equity Before: Meek J Decision: Orders made finalising family provision claim and, if leave be required pursuant to the Felons (Civil Proceedings) Act 1981 (NSW), granting leave nunc pro tunc to the plaintiff for the bringing, maintenance and settlement of the proceedings. Catchwords: SUCCESSION — Family provision — Standing — Leave to commence and maintain proceedings — Consideration of whether a plaintiff who commenced family provision proceedings prior to being convicted of, and serving imprisonment in respect of, serious Commonwealth offences is able to maintain and settle such proceedings whilst he is still in custody — Consideration of common law and Felons (Civil Proceedings) Act 1981 (NSW) regarding persons in custody in respect of serious offences — It is doubtful that the terminology of common law "felony offences" (capital or non-capital) and any disabling effects of convictions for such offences applies to the offences with which the defendant was convicted and in custody — There is some doubt that the Felons (Civil Proceedings) Act 1981 (NSW) applies to the Commonwealth offences to which the defendant was convicted and in custody — However, if so applicable leave ought be given nunc pro tunc to the plaintiff for the bringing, maintenance and settlement of the proceedings SUCCESSION — Family provision — Orders designating property as notional estate — Operation of ss 63, 79 and 90 Succession Act explained SUCCESSION — Family provision — Consent orders — The parties asked the Court to make consent orders in a family provision claim by a son of the deceased, currently in custody — Orders sought (and made) finalising proceedings and addressing standing issue Legislation Cited: Civil Procedure Act 2005 (NSW) Crimes Act 1900 (NSW) Crimes (Administration of Sentences) Act 1999 (NSW) Crimes (Death Penalty Abolition) Amendment Act 1985 (NSW) Crimes Legislation Amendment (Sentencing) Bill 1999 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Code Act 1995 (Cth) Criminal Procedure Act 1986 (NSW) Death Penalty Abolition Act 1973 (Cth) Defence Act 1903 (Cth) Defence (Special Undertakings) Act 1952 (Cth) Family Provision Act 1982 (NSW) Felons (Civil Proceedings) Act 1981 (NSW) Imperial Acts Application Act 1969 (NSW) Interpretation Act 1987 (NSW) Partition Ordinance 1931-1964 Piracy Punishment Act 1902 (NSW) Succession Act 2006 (NSW) Testator's Family Maintenance and Guardianship of Infants Act 1916 (NSW) Cases Cited: Boatswain v Boatswain [2023] NSWSC 763 Burns Philp Trustee Co Ltd v Viney [1981] 2 NSWLR 216 Butler v State of New South Wales [2023] NSWSC 118 Cable v Sinclair [1788] NSW KR 7 Clayton v Clayton [2023] NSWSC 399 Cooper v State of New South Wales [2023] NSWSC 189 Dickson v Commissioner, Australian Federal Police [2020] NSWCA 125; (2020) 381 ALR 364 Dickson v Commonwealth Director of Public Prosecutions [2023] NSWCA 175 Dugan v Mirror Newspapers Ltd (1978) 142 CLR 583; [1978] HCA 54 Farrow v Nationwide News Pty Ltd (2017) 95 NSWLR 612; [2017] NSWCA 246 Ford v Simes [2009] NSWCA 351 GP1 v State of New South Wales [2023] NSWSC 1042 Hampson v Hampson [2010] NSWCA 359 Hamzy v Commissioner of Corrective Services NSW (2022) 107 NSWLR 544; [2022] NSWCA 16 Hoadley v Hoadley (Supreme Court (NSW), Young J, 17 February 1987, unrep) Hoskin v Trustees of the Marist Brothers [2023] NSWSC 739 Jol v State of New South Wales (1998) 45 NSWLR 283; (1998) 104 A Crim R 516 Macari v Mirror Newspapers Ltd (Supreme Court (NSW), Cantor J, 4 March 1980, unrep: BC8037973) Maddrell v Public Trustee (NSW) (1986) 86 A Crim R 46 McBride v McBride [2024] NSWSC 45 Patsalis v State of New South Wales (2012) 81 NSWLR 742; [2012] NSWCA 307 Potier v Attorney General in and for the State of New South Wales (2015) 89 NSWLR 284; [2015] NSWCA 129 R v McBride (No 4) [2024] ACTSC 147 Raymond v Honey [1983] 1 AC 1 Schneidas v Jackson [1982] 2 NSWLR 969 Smith v Public Trustee (1989) 42 A Crim R 126 Stone v Stone [2016] NSWSC 605 Sullivan v State of New South Wales [2024] NSWSC 467 Taipa v Trustees of the Roman Catholic Church for the Diocese of Broken Bay [2022] NSWSC 691 Texts Cited: Albert Venn Dicey "A Treatise on the Rules for the Selection of the Parties to an Action" (1870, Maxwell) Bruce Kercher and Brent Salter, The Kercher Reports: Decisions of the New south Wales Superior Courts, 1788 to 1827 (2009, Francis Forbes Society for Australian legal History) Crimes Legislation Amendment (Sentencing) Bill 1999 (NSW) Ivan Potus and John Walker, "Trends & Issues in Crime and Criminal Justice No 3" (1987) Australian Institute of Criminology New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 18 March 1981, 8 April 1981, 14 April 1981, 28 October 1999 New South Wales Legislative Council, Parliamentary Debates (Hansard) 14 April 1981, 30 November 1999 Pearce, Denis 'Statutory Interpretation in Australia' 10ed 2024 (LexisNexis) "The speech of T F Bathurst AC KC on the launch of Enduring Courts in Changing Times (New South Wales and Tasmania) 16 July 2024" (2024) 55 Australian Bar Review 10 Category: Procedural rulings Parties: David McBride (Plaintiff) Louise McBride (Defendant) Representation: Counsel: M Pringle (Plaintiff) E A Cohen (Defendant) Solicitors: Glass Goodwin Solicitors (Plaintiff) Matthews Dalton Lawyers (Defendant) File Number(s): 2022/00335820