BROWN AND ORS v AKERMAN [NO 2] [1995] NSWCA 61

BROWN AND ORS v AKERMAN [NO 2] [1995] NSWCA 61

The Court granted an extension of time for the claimants to file their notice of appeal with appointment against the whole of the trial decision notwithstanding the earlier limitation to costs, on the basis that the delay was not substantial by modern standards, there was no proven prejudice to the opponent, the potential appeal was not clearly hopeless, and the procedural rules should not defeat a litigant for a technicality; however, the claimants must bear costs resulting from their conduct.

Parties
Claimant: Margaret Brown; Claimant: Ronald Crooks; Claimant: Robert Crooks; Opponent (executor): Steven Akerman
Jurisdiction
Australia
Judgment Date
01 September 1995
Procedural Posture
Motion for Extension of Time to Appeal; Probate Dispute / Appellate (motion Before New South Wales Court of Appeal)
Outcome
Extension of time granted on terms as to costs.
Legal Topics
Extension of Time for Appeal, Testamentary Capacity, Costs Orders
Practice and Procedure Wills and Probate Extension of Time for Appeal Testamentary Capacity Costs Orders

Case Brief

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Parties

Margaret Brown

Claimant

Ronald Crooks

Claimant

Robert Crooks

Claimant

Steven Akerman

Opponent (executor)

Procedural Posture

Motion for Extension of Time to Appeal; Probate Dispute / Appellate (motion Before New South Wales Court of Appeal)

Legal Issues

  1. 1 Whether an extension of seven weeks should be granted to file a notice of appeal with appointment out of time against substantive orders and costs in a probate matter.
  2. 2 Whether the previous abandonment of the substantive appeal and the filing of an appeal limited to costs precludes granting the extension.

Ratio Decidendi

The Court granted an extension of time for the claimants to file their notice of appeal with appointment against the whole of the trial decision notwithstanding the earlier limitation to costs, on the basis that the delay was not substantial by modern standards, there was no proven prejudice to the opponent, the potential appeal was not clearly hopeless, and the procedural rules should not defeat a litigant for a technicality; however, the claimants must bear costs resulting from their conduct.

Court Disposition

Extension of time granted on terms as to costs.

Orders

  • Claimants to have fourteen days within which to institute an appeal from the whole of the decision of Young J dated 14 December 1994 in the form of the notice of appeal with appointment as last amended and handed to the Court.
  • As a condition of the extension, claimants to pay all costs reasonably incurred by the opponent of and incidental to the motion for extension of time.