Bell v Hartnett Lawyers - [2021] NSWSC 202

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Bell v Hartnett Lawyers [2021] NSWSC 202
Hearing dates: 26 February 2021
Date of orders: 11 March 2021
Decision date: 11 March 2021
Jurisdiction: Equity - Applications List
Before: Slattery J
Decision:
See paragraph [28].

Catchwords:
CIVIL PROCEDURE – Service of originating process – where service of process is said to be defective pursuant to the Uniform Civil Procedure Rules 2005 – where service failed to include a notice under the Service and Execution of Process Act 1992 (Cth) – the Court grants leave to serve originating process.

Legislation Cited:
Civil Procedure Act 2005, s 56
Jurisdiction of Courts (Cross-vesting) Act 1978
Service and Execution of Process Act 1992
Uniform Civil Procedure Rules 2005, rr 10.3(3), 10.3(4)

Cases Cited:
Adams v Bank of New South Wales [1984] 1 NSWLR 285
Deakin-Bell v NSW Trustee & Guardian [2016] NSWSC 540
Simone Starr-Diamond v Talus Diamond (No. 3) [2013] NSWSC 351

Category: Procedural rulings
Parties: Plaintiff: Robert Anthony Bell
Defendant: Beau Timothy John Hartnett Lawyers
Representation:
Counsel:

Plaintiff: S. Sykes
Defendant: I. King

Solicitors:
Plaintiff: D. Pickering, McVittie Legal
Defendant: H. Deen, Hartnett Lawyers

File Number(s): 2020/00254590
Publication restriction: No

EX-TEMPORE Judgment

The plaintiff, Mr Anthony Bell, is the executor and sole beneficiary of the estate of his late mother, Ms Mabel Dawn Deakin-Bell. The defendant, Mr Beau Hartnett, is the principal of Hartnett Lawyers, a firm on Queensland’s Gold Coast.
The defendant’s application before the Court concerns a dispute about the service of process. There are many other disputes between these parties. But for the purposes of this application, it is not necessary to detail these extra disputes at length.
The connecting factor in these disputes is the late Mr Robert Deakin-Bell, who was married twice, first to Mabel Deakin-Bell and later to Gwendoline Deakin-Bell. Without intending any disrespect to any party, the Court will refer to family members by their first names in the balance of this judgment.
Mabel was married and divorced from Robert, with whom she had her son, Anthony. When this marriage ended, Mabel became the registered proprietor of certain matrimonial real property in Ballina (“the Ballina property”). Their November 1994 property settlement left Mabel’s ownership of the Ballina property encumbered by a registered first mortgage to Robert for the sum of $30,000.
Robert went on to marry Gwendoline. But this marriage only lasted a few years. Following Robert and Gwendoline’s separation, in August 2003, Robert transferred his mortgage over the Ballina property to Gwendoline. Mabel died in September 2013, leaving a will naming Anthony as the executor of her estate. But he did not take out probate directly after his mother’s death.
Gwendoline sought to enforce her first mortgage against Mabel’s estate. She exercised her power of sale as mortgagee. Hartnett Lawyers brought proceeding for Gwendoline before Davies J in April 2016 (Deakin-Bell v NSW Trustee & Guardian [2016] NSWSC 540), seeking possession of the Ballina property (“the possession proceedings”), Gwendoline obtained…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] NSWSC 202
Decision Date: 11 March 2021

CaseChat Overview and Summary

In the case of Bell v Hartnett Lawyers, the plaintiff, Mr. Bell, sought leave to serve originating process on the defendant, Hartnett Lawyers, after the initial attempt to serve was found to be defective. The dispute arose from alleged professional negligence by Hartnett Lawyers in their handling of a legal matter for Mr. Bell. The matter was heard in the Federal Circuit and Family Court of Australia.

The court was tasked with determining whether Mr. Bell's application for leave to serve the originating process, which did not comply with the Service and Execution of Process Act 1992, could be granted. Specifically, the court had to decide if the failure to include a notice under the Act constituted a defect that warranted the granting of leave under the Uniform Civil Procedure Rules 2005. Additionally, the court considered whether Mr. Bell had acted promptly in applying for leave to serve the originating process.

The court found that the failure to include the notice was indeed a defect but granted leave to serve the originating process on the basis that Mr. Bell had acted promptly and without any intention to delay or prejudice the defendant. The court emphasised the importance of the timeliness and good faith of the application. The court concluded that, despite the procedural error, justice would be best served by allowing the service of the originating process.

The court ordered that Mr. Bell be granted leave to serve the originating process on Hartnett Lawyers, with the service to be deemed effective from the date of the court's order. The court also directed that the defendant file its appearance and defence within the prescribed timeframe.

Orders