Boyd v Thorn - [2016] NSWSC 837

Supreme Court

New South Wales

Medium Neutral Citation: Boyd v Thorn [2016] NSWSC 837
Hearing dates: 14 June 2016
Decision date: 14 June 2016
Jurisdiction: Equity
Before: White J
Decision:
1. Proceedings dismissed.
2. Plaintiff to pay the defendant’s costs of the proceedings.

Catchwords: PRACTICE AND PROCEDURE — Pleadings — Application to strike out amended statement of claim pursuant to UCPR r 14.28 — Application to dismiss proceedings pursuant to UCPR r 13.4 — Amended statement of claim seeks order setting aside orders made in earlier proceeding on ground they were procured by fraud — Amended statement of claim seeks order setting aside grant of probate — Whether amended statement of claim pleads fresh facts which would provide a reason for setting aside earlier orders — No newly discovered material is relied on — Plaintiff lacks standing to challenge the grant of probate — Amended statement of claim attempts to re-litigate matters that have been heard and determined — Proceedings dismissed
Cases Cited: Boyd v Catherine Margaret Thorn as Executrix of the Estate of the late Betty McAuley [2016] NSWSC 588
Catherine Margaret Thorn as executrix of the estate of the late Betty McAuley v Boyd [2014] NSWSC 1159
Aboody v Ryan [2012] NSWCA 395
Cabassi v Vila [1940] 64 CLR 130
McDonald v McDonald (1965) 113 CLR 529
Wentworth v Rogers (No 5) (1986) 6 NSWLR 534
Toubia v Schwenke (2002) 54 NSWLR 46
Betty McAuley by her Tutor the NSW Trustee & Guardian v Ian Geoffrey Boyd (Kunc J, Supreme Court of NSW, 22 May 2013)
Re Burt [1988] 1 Qd R 23
Re Cook; Ex Parte C (1985) 156 CLR 249
Category: Principal judgment
Parties: Ian Boyd (Plaintiff)
Catherine Margaret Thorn (Defendant)
Representation:
Counsel:
In person (Plaintiff)
V Brigden (Defendant)
Solicitors:
n/a (Plaintiff)
Shaw McDonald Lawyers

File Number(s): 2016/104251

Judgment

HIS HONOUR: These proceedings were commenced on 6 April 2016 by the filing by the plaintiff, Mr Ian Boyd, of the statement of claim naming as the defendant Mrs Catherine Thorn who is the executrix of the estate of the late Betty McAuley. The statement of claim, amongst other relief, sought orders setting aside orders made by Robb J following a judgment delivered on 25 August 2014 in proceedings number 2011/91377 in which Mrs Thorn was plaintiff and Mr Boyd defendant.
An amended statement of claim was filed by Mr Boyd in these proceedings on 4 May 2016. I am dealing with a notice of motion filed by Mrs Thorn in which she seeks an order that the proceeding be summarily dismissed pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW), or alternatively that the amended statement of claim be struck out.
Robb J delivered two principal judgments in the proceeding 2011/91377, which I will call the 2011 proceeding.

Background

I had occasion to consider the background to this matter in a judgment given earlier this year (Boyd v Catherine Margaret Thorn as Executrix of the Estate of the late Betty McAuley [2016]…

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 Boyd v Thorn

Details

AGLC: Boyd v Thorn [2016] NSWSC 837
Case: [2016] NSWSC 837
Decision Date: 14 June 2016

CaseChat Overview and Summary

In the matter of Boyd v Thorn, the dispute was between two parties, Boyd and Thorn, and it was brought before the court. The plaintiff, Boyd, sought to set aside orders made in an earlier proceeding on the grounds that they were procured by fraud. The plaintiff also sought to set aside the grant of probate. The defendant, Thorn, filed an application to strike out the amended statement of claim and to dismiss the proceedings under the relevant rules of the Uniform Civil Procedure Rules (UCPR).

The primary legal issues the court had to decide were whether the amended statement of claim pleaded fresh facts that would provide a reason for setting aside the earlier orders, whether the plaintiff had standing to challenge the grant of probate, and whether the proceedings attempted to re-litigate matters that had already been heard and determined. The court considered whether the plaintiff's amended statement of claim contained newly discovered material, which was not the case here. The court also examined whether the plaintiff had the legal standing to challenge the grant of probate. Furthermore, the court assessed whether the amended statement of claim was an attempt to re-litigate matters that had already been adjudicated.

The court found that the amended statement of claim did not plead fresh facts that would provide a reason for setting aside the earlier orders, as no newly discovered material was relied upon. The plaintiff lacked standing to challenge the grant of probate. Additionally, the amended statement of claim attempted to re-litigate matters that had already been heard and determined in the earlier proceedings. Consequently, the court dismissed the proceedings.

Orders