Melbourn v Stephenson [2002] NSWCA 403

New South Wales Court of Appeal

CITATION : Melbourn v Stephenson [2002] NSWCA 403 FILE NUMBER(S) : CA 40907/01 HEARING DATE(S) : 9 August 2002, 18 November 2002 JUDGMENT DATE : 17 December 2002

PARTIES : Clay Corrie Melbourn (Appellant) Lydia May Stephenson (Respondent) JUDGMENT OF : Handley JA at 1; Stein JA at 15; Brownie AJA at 63

LOWER COURT JURISDICTION : District Court LOWER COURT DC 8876/97 FILE NUMBER(S) : LOWER COURT Coleman DCJ JUDICIAL OFFICER :

COUNSEL : P Hallen SC/ J Young (Appellant) A J Leslie QC (Respondent) SOLICITORS : Staunton & Thompson (Appellant) Steve Masselos & Co (Respondent) CATCHWORDS : NEGLIGENCE - CAUSATION - balance of probabilities test is not satisfied by evidence that does no more than establish a possibility - effect of death of alleged tortfeasor on plaintiff's ability to recover damages where tort is subsequent to the death of tortfeasor - survival of action in negligence against the estate of the deceased under the Law Reform (Miscellaneous Provisions) Act 1944, s 2(4) - interaction of Law Reform (Miscellaneous Provisions) Act, s 2(4) with the Wills, Probate and Administration Act 1898, ss 92, 95 where estate fully administered - viability of claim against executor and beneficiaries of the estate - effect of s 95 of the Wills, Probate and Administration Act - whether possibility of an equitable right of action against beneficiaries of the estate arises - ND Law (Miscellaneous Provisions) Act 1944, s 2(4) LEGISLATION CITED : Real Property Act 1900 Wills, Probate and Administration Act 1898, ss 92, 95 Deputy Federal Commissioner of Taxation v Brown (1958) 100 CLR 32 CASES CITED: Ministry of Health v Simpson [1951] AC 251 Seltsam v McGuiness [2000] 49 NSWLR 262 Taylor v Deputy Commissioner of Taxation (1969) 123 CLR 206 DECISION : 1) Appeal allowed with costs, the respondent to have a certificate under the Suitor's Fund Act if otherwise entitled; 2) Set aside his Honour's verdict and orders in favour of the respondent against the appellant and substitute therefor a verdict for the defendant with costs.