D J Singh v D H Singh & Anor [2017] NSWSC 269

Supreme Court New South Wales

Medium Neutral Citation: D J Singh v D H Singh & Anor [2017] NSWSC 269 Hearing dates: Written submissions 28 February, 12 March 2017 Decision date: 20 March 2017 Jurisdiction: Equity - Probate List Before: Black J Decision: Order made to give effect to determination in judgment that claim for provision under the Succession Act 2006 (NSW) should be dismissed. Catchwords: PROCEDURE – Judgments and orders – In general – where judgment given that proceedings should be dismissed – whether order should be made giving effect to the judgment Legislation Cited: - Succession Act 2006 (NSW) Cases Cited: - Singh v Singh [2015] NSWSC 1457 - Singh v Singh [2017] NSWCA 15 Category: Consequential orders (other than Costs) Parties: David John Singh (Plaintiff) Darran Harsewan Singh (First Defendant) Paul William Campbell (Second Defendant) Representation: On papers

Solicitors: Mr David Singh (self-represented) Kym Chapman & Associates (Darran Harsewan Singh and Paul William Campbell) File Number(s): 2013/338156

Judgment

Background 1. On 30 June, 1–3 July and 8 September 2015, I heard relatively complex proceedings relating to the Estate of the late Douglas John Singh. The complexity of those proceedings resulted partly from the fact that there were several overlapping proceedings. Those proceedings included proceedings 2013/141437 ("Probate Proceedings") in which, inter alia, Mr David Singh filed a "Second Cross-Claim amended 10 September 2014 Statement of Cross-Claim" which brought multiple claims for relief, including a claim for provision under the Succession Act 2006 (NSW). I also heard proceedings brought by Mr David Singh (2013/338156) ("Further Proceedings") in which he brought, inter alia, a similar claim for provision under the Succession Act, as well as two other proceedings brought by other claimants who also brought claims under the Succession Act. As I noted, in my judgment delivered on 2 October 2015 ([2015] NSWSC 1457) at [11], Mr Smart, who appeared as Counsel for Mr David Singh in the proceedings, narrowed his claims in both the Cross-Claim in the Probate Proceedings and in the Further Proceedings to four matters, the fourth of which was a claim for provision for Mr David Singh under the Succession Act. 2. I addressed Mr David Singh's claim for provision under the Succession Act, both in his Cross-Claim in the Probate Proceedings and in his separate claim in the Further Proceedings, in my judgment at [139] – [162], I observed, at the conclusion of that part of the judgment, that: "I am satisfied that [Mr David Singh's] evidence fell well short of what would be needed to provide an understanding of his financial circumstances, and I am not persuaded that his financial position is as he claims. I am also not persuaded, for these and the other reasons set out above, that [Mr David Singh] has financial need beyond his entitlement to a share of the residue under the will, and it seems to me that the deceased made adequate provision for [Mr David Singh's] maintenance, education and advancement in life in all the circumstances. [Mr David Singh's] claim for provision under Chapter 3 of the Succession Act therefore fails." 1. Mr David Singh also did not succeed in respect of the other submissions put by his Counsel, so as to support any other order in his favour in the Further Proceedings. When I delivered judgment, I made orders dismissing Mr David Singh's Cross-Claim in the Probate Proceedings, including his claim for provision under the Succession Act. On 2 November 2015, I made further orders in a form agreed between the parties to give effect to my judgment which provided for costs in respect of, inter alia, the Further Proceedings brought by Mr David Singh. 2. Mr David Singh appealed from my judgment, filing a Notice of Intention to Appeal on 30 October 2015 and a Notice of Appeal on 18 January 2016. On 22 August 2016, Simpson JA ordered that the appeal be dismissed by reason of issues as to compliance with directions made in respect of the conduct of the appeal. By a further judgment delivered on 13 February 2017 ([2017] NSWCA 15) three judges of the Court of Appeal (Beazley P, Macfarlan JA and Emmett AJA) set aside Simpson JA's order. In the course of their judgment, the Court of Appeal observed (at [2]) that I had concluded that the claim by Mr Singh for provision pursuant to Chapter 3 of the Succession Act should be dismissed "although no formal order to give effect to that conclusion appears to have been made". That proposition appears to be correct in respect of Mr David Singh's separate claim in the Further Proceedings, although Mr David Singh's corresponding Cross-Claim in the Probate Proceedings had been dismissed by my orders made when I delivered judgment on 2 October 2015. The Court of Appeal observed that an application needed to be made to me to make a formal order to give effect to my decision on Mr Singh's family provision application.