NSW Trustee & Guardian v Hull & Anor [2011] NSWSC 1106

Supreme Court New South Wales

Medium Neutral Citation: NSW Trustee & Guardian v Hull & Anor [2011] NSWSC 1106 Hearing dates: 14 & 15 September 2011 Decision date: 12 October 2011 Jurisdiction: Equity Division Before: Hallen AsJ Decision: 1. Upon enquiry, it is determined that the persons entitled on intestacy to succeed to the estate of Warren Scott Smith who died between 15 and 30 September 2008, are the second Defendant David Wayne Smith and his half brother, Daryl John Smith. 2. The Plaintiff is authorised to distribute the deceased's estate accordingly. 3. Unless the parties are able to agree, stand the matter over to a convenient date to argue how the burden of the costs of the proceedings is to be borne. Catchwords: Plaintiff's application seeks an order for determination, by inquiry, of the identity of the next of kin of the deceased intestate - Proceedings brought pursuant to Uniform Civil Procedure Rules 2005 ("UCPR"), rule 54.3 - First Defendant asserts that he is the father of the deceased - Second Defendant appointed to represent the interests of the siblings of the half blood of the deceased Legislation Cited: Evidence Act 1995 Fair Trading Act 1987 NSW Trustee and Guardian Act 2009 Probate & Administration Act 1898 Public Trustee Act 1913 Succession Act 2006 Succession Amendment (Intestacy) Act 2009 Trade Practices Act 1974 (Cth) Uniform Civil Procedure Rules 2005 Cases Cited: A (A Minor); Re (Paternity: Refusal of Blood Test) [1994] 2 Fam Law R 463 Bellpac Pty Limited (Receivers and Managers Appointed) (In Liquidation) (No 2), Warner v Hung, in the matter of [2011] FCA 1123 Clarke v Mcfarlane [2008] NSWSC 432 Forster v Hunter New England Area Health Service [2010] NSWCA 106 Goodright v Moss (1777) 2 Cowp 591; (1777) 98 ER 1257 Harbour Port Consulting v NSW Maritime [2011] NSWSC 813 Jones v Dunkel [1959] HCA 8; 101 CLR 298 Lym International Pty Ltd v Marcolongo [2011] NSWCA 303 Moszko v Warshall (Supreme Court of Victoria, 20 February 1995, unreported) Pennington (decd) (No 2), Re [1978] VR 617 Preston-Jones v Preston-Jones [1951] AC 391 Public Trustee v Solah [1999] NSWSC 660 Russell v Russell, [1924] AC 687; [1924] UKHL 1 (HL) Watson v Foxman (1995) 49 NSWLR 315 West v Weston [1998] NSWSC 419 Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48 Zahra v Francica [2009] NSWSC 1206 Texts Cited: Chief Justice J Spigelman 'Truth and the Law' (Speech delivered at the 2011 Sir Maurice Byers Lecture, 26 May 2011) J H Wigmore, Wigmore On Evidence, 3rd ed, (1940), vol 2 Category: Principal judgment Parties: NSW Trustee & Guardian (Plaintiff) Lance Hull (first Defendant) David Wayne Smith (second Defendant) Representation: Counsel: Mr B Townsend (Plaintiff) Mr J Anderson (first Defendant) Mr A L Hill (second Defendant) Solicitors: NSW Trustee & Guardian (Plaintiff) Farrell Lusher (first Defendant) Bartier Perry (second Defendant) File Number(s): 2011/52466