ALLAN v THE PUBLIC TRUSTEE [1995] NSWCA 13

ALLAN v THE PUBLIC TRUSTEE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

GLEESON CJ, HANDLEY and POWELL JJA 24 April 1995, 25 August 1995

[1995] NSWCA 13

FAMILY PROVISION — APPEAL — EVENTS AFTER TRIAL — FURTHER EVIDENCE ON APPEAL

In October 1993 Master Macready awarded the appellant under the Family Provision Acta legacy of $250,000 from the estate of the late Vera Palley which was worth $730,000 and passed to the Crown as bona vacantia. The appellant did not appeal within time. Her second son later killed her husband and following his conviction for manslaughter committed suicide in gaol. Shortly afterwards she was diagnosed with cancer. In April 1994 she was given an extension of time to appeal. On appeal the Master's order was challenged as inadequate on the evidence before him, and in the alternative as inadequate in the light of later events. The appellant sought leave to adduce further evidence.

Held: (1) The Master's award was not inadequate at the time, a legacy of $250,000 being well within his discretion. (2) The Court should not receive the further evidence which, as Moffitt AP said in Warr v Santos (1973) 1 NSWLR 432 at 434 was "sought to be availed of to disturb an otherwise unimpeachable determination after a hearing upon the merits". (3) Where the time for appealing had expired '"'a very strict rule should be applied".

Mulholland v Mitchell [1971] AC 666 at 681-682. Doherty v Liverpool Hospital (1991) 22 NSWLR 284 applied.

ORDER

Appeal dismissed with costs.

Gleeson CJ I have had the benefit of reading in draft form the judgment of Handley JA.

I agree with the orders proposed by his Honour, and with his reasons for those orders.

Handley JA This is an appeal by the plaintiff from an order of Master Macready made on 29 October 1993 awarding her under the Family Provision Act (the Act) a legacy of $250,000 from the Estate of the late Vera Palley (the deceased). The deceased, a so-called White Russian, who was born in Manchuria in 1916 came to this country from Hong Kong during the 50s. She was married but her husband predeceased her in 1973 and they had no children. She died intestate on 23 September 1991 aged seventy five without next of kin. She left an estate valued at the date of trial at approximately $730,000 which, subject to the Act, passed to the Crown as bona vacantia.