Hyland v Burbidge [2000] NSWSC 12

New South Wales Supreme Court

CITATION : Hyland v Burbidge [2000] NSWSC 12 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 1687 of 1993 HEARING DATE(S) : 30 November 1999, 1, 2, 3, 7, and 8 December 1999 JUDGMENT DATE : 2 February 2000

Alexandra Larissa Kaitha Hyland (First Plaintiff) Christian Ludlow Hyland (Second Plaintiff) Lisa Ludlow Hyland (Third Plaintiff) Richard John Burbidge (First Defendant) Panker Nominees Pty Limited (Fourth Defendant) PARTIES : Hartigan Nominees Pty Limited (Fifth Defendant) The Armidale School Foundation Limited (Sixth Defendant) Anne Chi Quang (Seventh Defendant) Charles Lap Hyland (Eighth Defendant) Gartner Foundation (Ninth Defendant) Cura Treinstitut (Tenth Defendant) Edward Robert Hyland Kavalee (Eleventh Defendant) JUDGMENT OF : Windeyer J at 1

Mr. N. Hutley SC with him Mrs D Stewart (Plaintiffs) COUNSEL : Mr R.W. White SC with him Mr G.A. Seib (First and Seventh Defendants) Mr P.L. Brereton SC with him Mr. D. Stack (Fifth Defendant) Mr D. Officer QC with him Mr. R. Darke (Eleventh Defendant) Gadens (Plaintiffs) SOLICITORS : Hickson Wisewoulds (First and Seventh Defendants) Stacks - The Law Firm (Fifth Defendant) Connery & Partners (Eleventh Defendant) CATCHWORDS : TESTATORS FAMILY MAINTENANCE - application of illegitimate child - parentage not disputed - extent of duty to provide maintenance - no contact between parent and child - no fault of child - provision out of notional estate - very substantial assets available for designation - no competing interest - assessment of needs - Family Provision Act 1982 (NSW) - Status of Children Act 1996 (NSW) - TESTATORS FAMILY MAINTENANCE - application of widow - separate lives for 27 years and short period together - little contact and no support - widow undertook entire responsibility for two children - provision out of notional estate - very substantial assets available for designation - no competing interest - relevant matters for consideration - Family Provision Act 1982 (NSW) - TESTATORS FAMILY MAINTENANCE - application of two children - both able bodied adults with reasonable incomes - no contact with deceased and negligible support - difficult early life - provision out of notional estate - very substantial assets available for designation - no competing interest - provision made by Foundation expended largely on pursuit of claims - assessment of needs - Family Provision Act 1982 (NSW) LEGISLATION CITED : Children (Equality of Status) Act 1976 (now Status of Children Act 1996) Family Provision Act 1982 (NSW) Gorton v Parks (1989) 17 NSWLR 1 Hughes v National Trustees, Executors and Agency Co of Australasia Limited (1979) 143 CLR 134 Hunter v Hunter (1987) 8 NSWLR 573 Permanent Trustee Company Ltd v Fraser (1995) 36 NSWLR 24 Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 CASES CITED : Re Adams [1967] VR 881 Re Cutts [1969] VR 254 Re H J Mayo, deceased [1968] 2 NSWR 709 Re Wade [1946] SASR 131 Re Wren, deceased [1970] VR 449. Walker v Walker (Young J, unreported, 17 May 1996) DECISION :