Lance Hume Hull v David Wayne Smith [2013] NSWDC 78

District Court New South Wales

Medium Neutral Citation: Lance Hume Hull v David Wayne Smith [2013] NSWDC 78 Hearing dates: 20-21 May 2013 Decision date: 30 May 2013 Before: Mahony SC DCJ Decision: Verdict for the Defendant Catchwords: Compromise of proceedings; whether agreement enforceable Legislation Cited: Uniform Civil Procedure Rules Civil Procedure Act 2005 Succession Act 2006 Cases Cited: Calderbank v Calderbank (1975) All ER 333 Hadley v Baxendale [1843-60] All ER Rep 461 Lewis v Combell Constructions Pty Limited (1989) 18 NSWLR 528 Category: Principal judgment Parties: Lance Hume Hull - Plaintiff David Wayne Smith - Defendant Representation: J Anderson - Plaintiff V Hartstein - Defendant Farrell Lusher Armstrong Solicitors File Number(s): 12/204392 Publication restriction: Nil

Judgment

The Plaintiff's Claim 1The plaintiff claims damages for breach of contract allegedly made between his solicitor, Mr Peter Smith, and another solicitor, Mr Phillip Davis, on behalf of the defendant, David Wayne Smith. In paragraph 7 of his Statement of Claim, the plaintiff has pleaded that the parties agreed that "in consideration of the payment by the defendant to the plaintiff of the sum of $75,000 the plaintiff would not appeal from the judgment in the proceedings". 2The "proceedings" are identified in paragraph 1 of the Statement of Claim as proceedings No. 2011/52466 in the Supreme Court of New South Wales. Those proceedings, which were brought by the NSW Trustee and Guardian ("the Trustee") sought determination by inquiry of the identity of the next of kin of Warren Scott Smith who had died intestate between 15 and 30 September 2008. On the death certificate of Warren Scott Smith, the plaintiff had been nominated as the father of the deceased. Apparently, that information had been provided by the defendant to an undertaker employed by the defendant. 3The defendant was the son of Warren Scott Smith, and he had a half brother, Daryl Smith. As the deceased died intestate, his estate, which for probate purposes was in excess of $600,000, would pass to the plaintiff if he could establish paternity. If not, the whole of the estate would pass to the defendant and his half brother.