McKENZIE v BADDELEY [1995] NSWCA 283

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

PRIESTLEY, HANDLEY JJA and HODGSON AJ 29-31 May 1995, 29 August 1995

[1995] NSWCA 283

FAMILY PROVISION ACT — ESTOPPEL ARISING OUT OF EARLIER DECISION Application under Family Provision Act, by person previously held by Court of Appeal to be an eligible person (McKenzie v Baddeley 3/12/91), is dismissed with costs. Appeal brought on grounds that trial judge erred in dealing with estoppels arising out of earlier decision, with the questions of "factors warranting" and of moral duty, and with questions concerning the appellant's credit and alleged diversion of moneys; in admitting evidence of the circumstances of persons entitled to the estate on intestacy; and in dealing with costs. Held (1) No appealable error shown. (2) The financial circumstances of persons entitled on intestacy are generally relevant. (3) (per Priestley, JA) When an order for separate trial of an issue is made, consideration should be given to making ancillary orders or obtaining undertakings with a view to ensuring that related issues in one proceedings are not decided by different judges upon different evidence.

ORDERS

1. Appeal dismissed.

2. The appellant to pay the estate's costs of the appeal.

3. These costs to be set off against costs payable under an earlier order by the estate to the appellant.

Priestley JA The details of the points argued in this appeal and the facts necessary to under stand those points are set out in the reasons of Hodgson AJA. Before coming to them, I comment on another aspect of this case.

This is the second appeal in the proceedings brought by the appellant under the Family Provision Act 1982 (the Act) for provision to be made in his favour out of the estate of the late Mr FS Burton, who died on 18 May 1989. The first appeal was from a decision of Master Windeyer made on 16 May 1991 that Mr Mckenzie was not an eligible person as defined in s6(1) of the Act. Master Windeyer had earlier ordered that the question whether the appellant was an eligible person should be determined as a separate issue, before the decision of other issues in the proceedings.