NSW Caselaw
New South Wales Supreme Court
CITATION : Hammond v Hammond [2010] NSWSC 331
HEARING DATE(S) : 12-13 April 2010
JUDGMENT DATE : 27 April 2010
JURISDICTION : Equity
JUDGMENT OF : Biscoe AJ
DECISION : (1) Order defendant to pay plaintiff $77,230; (2) cross claim dismissed; (3) defendant to pay plaintiff's costs of the proceedings; (4) exhibits may be returned.
CATCHWORDS : TRUSTS - whether executor of will distributed money to himself in breach of orders in earlier Family Provision Act proceedings between the parties - executor cross claims to construe or rectify the phrase "residue of the estate" in agreed short minutes of order in the earlier proceedings so as to include a superannuation fund death benefit which was not an asset in the estate - cross claim dismissed - whether, if executor's cross claim had succeeded, it would have affected the perfected orders made in the earlier proceedings - EVIDENCE - whether rule in Jones v Dunkel operates to require a party to give merely cumulative evidence
Civil Procedure Act 2005 LEGISLATION CITED : Family Provision Act 1982 Protected Estates Act 1983 Uniform Civil Procedure Rules 2005
Franklins Pty Ltd v Metcash Trading Ltd [2009] NSWCA 407, 264 ALR 15 Hammond v Hammond [2007] NSWSC 106 CASES CITED : Jones v Dunkel (1959) 101 CLR 298 Ryledar Pty Ltd v Euphoric Pty Ltd [2007] NSWCA 65, 69 NSWLR 603 Smith v Smith (now Vocalan) [2004] NSWSC 663 Taylor v Johnson (1983) 151 CLR 422
TEXTS CITED : J Heydon, Cross on Evidence, 8th ed (2010) LexisNexis Butterworths
PARTIES : John Joseph Hammond by his Tutor Luke John Hammond (plaintiff, cross-defendant) Terence Sydney Hammond (defendant, cross-claimant)
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