Madden v Madden [2014] NSWCA 427

Madden v Madden [2014] NSWCA 427

The applicant failed to show error in the exercise of discretion by the primary judge; the documents sought to be tendered were available at trial, and no adequate explanation was provided for their omission or the delay. No legal or factual error or miscarriage of justice was demonstrated, and no real prospect of success for an appeal existed.

Parties
Applicant: Alexander William Madden; First Respondent: Michael Patrick Madden as the executor of the Estate of the late Margaret Rose Falloon; Second Respondent: Eve Karen Falloon; Third Respondent: Chad Russell Falloon
Jurisdiction
Australia
Judgment Date
09 December 2014
Procedural Posture
Application for Leave to Appeal / Appellate Determination on Leave Application
Outcome
Application for leave to appeal dismissed with costs.
Legal Topics
Leave to Re Open, Finality of Litigation, Discretion of Court, Family Provision, Bankruptcy and Estates
Civil Procedure Equity Succession Leave to Re Open Finality of Litigation Discretion of Court Family Provision Bankruptcy and Estates

Case Brief

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Parties

Alexander William Madden

Applicant

Michael Patrick Madden as the executor of the Estate of the late Margaret Rose Falloon

First Respondent

Eve Karen Falloon

Second Respondent

Chad Russell Falloon

Third Respondent

Procedural Posture

Application for Leave to Appeal / Appellate Determination on Leave Application

Legal Issues

  1. 1 Whether the primary judge made an error of discretion in refusing an application to re-open the case
  2. 2 Whether the applicant had a valid explanation for delay and for not adducing further evidence at first instance
  3. 3 Whether the new evidence would have affected the outcome

Ratio Decidendi

The applicant failed to show error in the exercise of discretion by the primary judge; the documents sought to be tendered were available at trial, and no adequate explanation was provided for their omission or the delay. No legal or factual error or miscarriage of justice was demonstrated, and no real prospect of success for an appeal existed.

Court Disposition

Application for leave to appeal dismissed with costs.

Orders

  • Leave to appeal refused.
  • Applicant to pay the respondents' costs.