Cooper v Atkin [2021] NSWCA 82

Cooper v Atkin [2021] NSWCA 82

Leave to appeal was refused because the proposed appeal raised no issue of principle, question of public importance or reasonably clear injustice, the likely costs were grossly disproportionate to the value of the estate and any possible provision, and the applicant's central contention was incorrect because the primary judge's dispositive reasoning did not deny provision by reason of disentitling conduct but turned on the small estate, competing claims, and the absence of a close parent-child relationship or significant support by the deceased.

Jurisdiction
Australia
Judgment Date
13 May 2021
Procedural Posture
Application for Leave to Appeal in a Family Provision Claim Under Ch 3 of the Succession Act 2006 (nsw) / Court of Appeal Application for Leave to Appeal From Orders of Hallen J Dismissing the Summons; Applicant's Notice of Motion Filed 3 May 2021 Also Before the Court
Outcome
Leave to appeal refused; applicant's notice of motion dismissed; applicant to pay the respondents' costs.
Legal Topics
['family Provision' 'adult Step Child Claim' 'leave to Appeal' 'proportionality of Costs' 'disentitling Conduct']
['succession' 'civil Procedure'] ['family Provision' 'adult Step Child Claim' 'leave to Appeal' 'proportionality of Costs' 'disentitling Conduct']

Case Brief

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Procedural Posture

Application for Leave to Appeal in a Family Provision Claim Under Ch 3 of the Succession Act 2006 (nsw) / Court of Appeal Application for Leave to Appeal From Orders of Hallen J Dismissing the Summons; Applicant's Notice of Motion Filed 3 May 2021 Also Before the Court

Legal Issues

  1. 1 ['Whether leave to appeal should be granted where the potential amount in issue was small and costs were disproportionate' 'Whether the proposed appeal raised an issue of principle, a question of public importance, or a reasonably clear injustice' 'Whether the primary judge refused provision by reason of disentitling conduct' "Whether the applicant's procedural notice of motion should proceed if leave to appeal was refused"]

Ratio Decidendi

Leave to appeal was refused because the proposed appeal raised no issue of principle, question of public importance or reasonably clear injustice, the likely costs were grossly disproportionate to the value of the estate and any possible provision, and the applicant's central contention was incorrect because the primary judge's dispositive reasoning did not deny provision by reason of disentitling conduct but turned on the small estate, competing claims, and the absence of a close parent-child relationship or significant support by the deceased.

Court Disposition

Leave to appeal refused; applicant's notice of motion dismissed; applicant to pay the respondents' costs.

Orders

  • ['Leave to appeal refused;' "Applicant's notice of motion filed 3 May 2021 dismissed;" "Applicant to pay the respondents' costs."]