Blessed v Byrne - [2024] NSWSC 949

Supreme Court

New South Wales

Medium Neutral Citation: Blessed v Byrne [2024] NSWSC 949
Hearing dates: 4 July, 2 August 2024
Date of orders: 2 August 2024
Decision date: 02 August 2024
Jurisdiction: Equity - Succession & Probate List - Family Provision
Before: Meek J
Decision:
Plaintiff’s summons dismissed.

Catchwords:
CIVIL PROCEDURE — Family Provision —Summary disposal — Dismissal of proceedings — Whether the proceedings were frivolous or vexatious, disclosed no reasonable cause of action or were an abuse of process — Plaintiff’s summons simply sought “right to reside” in defendant’s property as relief, but other terminology used in the “particulars” to the summons indicated that a form of family provision claim was sought — Defendant is not the nominated executor of the deceased’s Will nor otherwise an appropriate person to represent the deceased’s estate — Held that the defendant is not an appropriate party to the claim and the claim disclosed no reasonable cause of action against him

Legislation Cited:
Civil Procedure Act 2005 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Stanizzo v Badarne [2014] NSWSC 1334

Category: Principal judgment
Parties: Robyn B Blessed (Plaintiff)
David Martin Byrne (Defendant)
Representation:
Counsel:
D M Flaherty (Defendant)

Solicitors:
Hinde Ginges Boyd Lawyers (Defendant)
No appearance (Plaintiff)

File Number(s): 2024/184217

EX TEMPORE JUDGMENT (REVISED)

Introduction

HIS HONOUR: The application before the Court is by way of an amended notice of motion filed by the defendant in these proceedings, in which he seeks to have the proceedings dismissed pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) or alternatively be removed as a party. The defendant is one of the children of the late Peter Gordon Byrne (the deceased). The deceased died on 6 July 2020, leaving a Will dated 1 July 2020. The plaintiff in the proceedings is one of the daughters of the deceased.
On 17 May 2024, the plaintiff filed with the Court a form of summons. The cover sheet of the summons contains the words “FAMILY PROVISION CLAIM” in the “Title of Proceedings” section. Those words are also used to describe the “Type of Claim” on the cover page.
On the second page of the summons, the relief claimed is simply described by the words “RIGHT TO RESIDE”.
There is a third page to the summons, headed “PARTICULARS”, which I will set out in the Schedule to this judgment. It appears that the matters set out in this part of the summons are the “facts” or matters upon which the plaintiff relies for her claim.

Procedural history

There was an initial listing of the summons on 20 June 2024 before Registrar Gerritsen. Mr Flaherty of counsel appeared on that occasion for the defendant, and there was no appearance for the plaintiff. The Registrar made orders for the defendant to file and serve any notice of motion to strike out the claim by 4pm on 27 June 2024 and stood the matter over to 4 July 2024.
On 4 July…

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.

Continue reading Blessed v Byrne

Details

AGLC: Blessed v Byrne [2024] NSWSC 949
Case: [2024] NSWSC 949
Decision Date: 02 August 2024

CaseChat Overview and Summary

In the case of Blessed v Byrne, the plaintiff sought relief under the Family Provision Act 1969 (NSW), aiming for a right to reside in the defendant's property. The proceedings were initiated in the Supreme Court of New South Wales. The defendant contested the claim, arguing that the plaintiff had no reasonable cause of action against him and that the proceedings were frivolous, vexatious, or an abuse of process.

The central legal issue was whether the defendant was an appropriate party to the claim and if the plaintiff's proceedings disclosed a reasonable cause of action. The court had to determine if the summons, despite its brevity, could be interpreted as seeking family provision relief and if the defendant, who was not the executor of the deceased's will, was the appropriate party to be held accountable.

The court concluded that the plaintiff's summons, although labelled as a request for a "right to reside," contained language indicative of a family provision claim. However, the defendant was neither the executor of the deceased's will nor in any way representing the deceased's estate. Consequently, the court found that the defendant was not an appropriate party to the claim and that the proceedings disclosed no reasonable cause of action against him. The court dismissed the proceedings, considering them an abuse of the court's process.

The final orders included the dismissal of the plaintiff's proceedings and the determination that the defendant was not an appropriate party to the claim. The court further found that the proceedings were frivolous, vexatious, or an abuse of process.

Orders