Hampson v Hampson [2010] NSWCA 359

New South Wales Court of Appeal

CITATION: Hampson v Hampson [2010] NSWCA 359

HEARING DATE(S): 16 November 2010

JUDGMENT DATE: 17 December 2010

JUDGMENT OF: Giles JA at 1; Campbell JA at 3; Handley AJA at 117

(1) Application to receive further evidence on appeal dismissed with costs. DECISION: (2) Appeal dismissed with costs. [The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

CATCHWORDS: EQUITY – Estoppel by conduct – Proprietary estoppel – Husband leaves property to widow who dies and leaves property to all seven children equally – Youngest son claims proprietary estoppel in relation to approximately one third portion of estate based on assurances and encouragement of father – whether proprietary estoppel exists in circumstances where the appellant claims that there was an oral representation by appellant's father that land would be given to appellant if he lived there and renovated cottage on the land and where the appellant claims he has relied and acted on the representation – not sufficient for appellant only to establish claim against appellant's father and it is necessary also to establish claim against the testatrix – lack of evidence concerning representation by Testatrix in relation to her testamentary intentions or of son's reliance on the representation – appeal against trial judge's finding concerning proprietary estoppel rejected – PROCEDURE – Appeal – Powers of court – Application to receive further evidence in support of proprietary estoppel claim – Consideration of "special grounds" in s75A Supreme Court Act 1970 – consideration of tests in Akins v National Australia Bank (1994) 34 NSWLR 155 – Whether failure of solicitor to act upon instructions of client constitutes special grounds – In determining whether litigant has exercised "reasonable diligence" for the purpose of an application to admit further evidence on appeal, the litigant has the actions and inactions of his legal representative attributed to him – Appellant found not to have satisfied conditions in Akins – Reception of further evidence forbidden by s79A(8) – Consideration of additional discretionary reasons for rejection of application to receive further evidence – SUCCESSION – Family provision and maintenance – whether application governed by Family Provision Act 1982 or Chapter 3 Succession Act 2006 – time as at which to decide jurisdiction and quantum – principles upon which relief granted – appeal relating to failure of trial judge to find jurisdiction – process for calculating adequate provision, as amongst seven children of deceased – consideration of circumstances of each child – Principles governing appellate review of trial judge's decision concerning jurisdictional question – no error in the determination of appellant's claim under the Family Provision Act – WORDS AND PHRASES – "special grounds" – SUCCESSION – family provision and maintenance – extent of judge's obligation to give effect to "the totality of the relationship between the applicant and the deceased" – PROCEDURE – appeal – from decision reviewable only on House v R grounds – availability of ground of appeal that judge "failed to give proper weight" to a relevant factor – SUCCESSION – family provision and maintenance – relevance to jurisdiction of applicant's (a) drug-taking (b) illegal conduct (c) money consuming habit – relevance to quantum of applicant's (a) drug-taking, (b) illegal conduct (c) money consuming habit