Fitter v Public Trustee & Ors [2007] NSWSC 1487

Fitter v Public Trustee & Ors [2007] NSWSC 1487

Ms Fitter had instructed her solicitor, after legal advice, to file a submitting appearance and understood that doing so would probably mean she would receive nothing from her mother's estate. No fraud, impropriety, substantial alteration of the relief, or other vitiating factor was shown. By the submitting appearance she surrendered the right to be heard and the Court was entitled to make orders against her without further notice or evidence from her. UCPR 36.16(2)(b) therefore did not apply and there was no basis to exercise inherent jurisdiction to set aside the earlier orders.

Jurisdiction
Australia
Judgment Date
13 December 2007
Procedural Posture
Summons Seeking to Set Aside Final Orders Under UCPR 36.16(2)(b) and Related Relief Under the Forfeiture Act 1995 and Family Provision Act 1982 / Final Determination of Paragraph 1 of the Amended Summons as a Separate Question Under UCPR 28.2
Outcome
Summons dismissed.
Legal Topics
['submitting Appearance' 'setting Aside Orders Made in Absence of a Party' 'forfeiture Rule' 'superannuation Proceeds' 'costs']
['practice and Procedure' 'equity' 'succession' 'forfeiture' 'family Provision'] ['submitting Appearance' 'setting Aside Orders Made in Absence of a Party' 'forfeiture Rule' 'superannuation Proceeds' 'costs']

Case Brief

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Procedural Posture

Summons Seeking to Set Aside Final Orders Under UCPR 36.16(2)(b) and Related Relief Under the Forfeiture Act 1995 and Family Provision Act 1982 / Final Determination of Paragraph 1 of the Amended Summons as a Separate Question Under UCPR 28.2

Legal Issues

  1. 1 ["Whether final orders made on 24 November 2005 should be set aside under UCPR 36.16(2)(b) on the ground that they were made in Ms Fitter's absence." "Whether Ms Fitter's submitting appearance prevented her from relying on UCPR 36.16(2)(b)." "Whether orders concerning the deceased's superannuation policy were outside the relief to which Ms Fitter had submitted." "Whether Lloyd AJ's decision was invalid because the Court did not have evidence as to Ms Fitter's mental health and other circumstances when applying s 11 of the Forfeiture Act 1995."]

Ratio Decidendi

Ms Fitter had instructed her solicitor, after legal advice, to file a submitting appearance and understood that doing so would probably mean she would receive nothing from her mother's estate. No fraud, impropriety, substantial alteration of the relief, or other vitiating factor was shown. By the submitting appearance she surrendered the right to be heard and the Court was entitled to make orders against her without further notice or evidence from her. UCPR 36.16(2)(b) therefore did not apply and there was no basis to exercise inherent jurisdiction to set aside the earlier orders.

Court Disposition

Summons dismissed.

Orders

  • ["Order that the Plaintiff's Amended Summons be dismissed." "Order that the Plaintiff pay the Defendants' costs of the proceedings on the party/party basis." "Order that the First Defendant have its costs otherwise out of the deceased's estate on an indemnity basis." "Grant liberty to all parties to apply on three...