Jurak v Latham

Jurak v Latham [2023] NSWSC 1318
Supreme Court of New South Wales
Meek J
Family provision – parties had reached a settlement on a family provision claim – the consent orders they asked the Court to make to finalise the proceedings noted that the parties did not know the whereabouts of one potential claimant, being a child of the deceased, and that the orders expressly disregarded his interests – on the day that notation and orders were made, the solicitors acting for the defendant were contacted by the missing child, within the twelve month statutory period for bringing claims – they did not inform the Court of this contact, or that the notation the Court was being asked to make was now incorrect – the parties later asked the Court to make consent orders in a family provision claim brought by this child – held: on the affidavit evidence of the solicitor for the defendant, that solicitor made a mistake which was entirely unintentional and that solicitor very appropriately accepted that there was a point of time in relation to the earlier proceedings in which, in hindsight, the solicitor ought to have drawn to the Court’s attention, prior to the making of orders in the earlier proceedings, the fact that the solicitor had been contacted by and on behalf of the current applicant – the principle that the Court should be advised of material matters bearing upon the making of an order is part of the duty owed by a legal practitioner to the Court – generally speaking, the rules of natural justice require that, before a court makes an order that may affect the rights or interests of a person, that person should be given an opportunity to contest the making of the order – where a court is invited to make, or proposes to make, orders directly affecting the rights or liabilities of a non-party, the non-party is a necessary party to the proceedings and ought to be joined – there are particular aspects of probate proceedings which bind parties who are “interested” in the proceedings, and parties will have an interest in probate proceedings if they have a right which will be affected by the outcome – there is no prescribed form of Notice of Eligible Persons, and, practically speaking, what practitioners do (and are expected to do) is adapt UCPR Form 1 and use that, appropriately modified to nominate persons who are, or may be, eligible persons – the Court’s experience of the Probate List is that not infrequently the plaintiff fails to identify persons who are self-evidently eligible persons including, for example, the administrator, who may be the spouse or child of the deceased – the Court’s approach generally to consent orders depends upon the nature of the jurisdiction being exercised – within legal parlance, there is a well-known distinction between proceedings in open court and in chambers – however, dealing with matters “in chambers” does not mean that the Court takes a less exacting or an informal approach to dealing with the matter – the plaintiff was a child of the deceased, and thus clearly eligible, and there was clearly an arguable case for making an order for provision – the proposed settlement of the parties in these proceedings did not give rise to any prospect that the estate will be insufficient to meet the claims for provision – having considered the evidence, the Court was satisfied that, in the circumstances of the case, the proposed settlement of the parties was an appropriate settlement, and made the orders sought by consent.
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