McKENZIE v BADDELEY [1991] NSWCA 196

McKENZIE v BADDELEY SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, MAHONEY and PRIESTLY JJA 1 July 1991, 1 July 1991

[1991] NSWCA 196

PRACTICE and PROCEDURE — appeal — from Master — to Court of Appeal — separate question — claim under provisions of Family Provision Act 1982 — following determination, Master dismisses application — whether appeal lies by leave or as of right — held: Appeal lies from the Master to the Court of Appeal as of right in such cases — summons for leave to appeal dismissed as unnecessary to determine.

TESTATORS' FAMILY MAINTENANCE — Family Provision practice — Master determines separated question — on basis of determination dismisses claim — appeal — whether to Court of Appeal — whether by leave or as of right — held: appeal lies to Court of Appeal by right. Family Provision Act 1982, s6. Supreme Court Act 1970, s101, s103. Supreme Court Rules Pt 60 r10, r17.

Kirby P Before the Court is a summons for leave to appeal from a decision of Master Windeyer dated 16 May 1991. The Master on that day dismissed a summons which had been brought by Mr Renneth McKenzie (the claimant) against Miss Alma Anna Baddeley, the administatrix of the estate of the late Stanley Francis Baddeley who died intestate (the opponent). The proceedings brought by the claimant sought provision to be made for him under the Family Provision Act 1982 (the Act) out of the estate. The claimant asserted that he was a person entitled to benefits under the provisions of that Act. The opponent disputed his entitlement.

The claimant's case was that he was eligible to benefits under the Act by reason of a homosexual relationship which had endured with the deceased between 1981 and the latter's death in May 1989. The Master acceded to an application by the parties that there should be ordered a separate determination of the question whether the claimant was an "eligible person" under the Act. Having determined that question against the claimant, the Master dismissed his suit. The claimant wishes to challenge the foregoing order. He filed a summons for leave to appeal. In the way the proceedings developed, this Court has not been concerned in the merits of the appeal. Cf Ball v Newey and Anor (1988) 13 NSWLR 489, 490 (CA); Benney v Jones, unreported, Court of Appeal, 18 June 1991.