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Cruden v Sae-ung

Cruden v Sae-ung

Case [2021] NSWSC 1070 25 August 2021

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Cruden v Sae-Ung [2021] NSWSC 1070
Hearing dates: In Chambers
Date of orders: 25 August 2021
Decision date: 25 August 2021
Jurisdiction: Equity
Before: Hallen J
Decision:
Orders that:
(a) The Plaintiffs’ notice of motion filed 9 June 2021 be dismissed.
(b) The Defendants’ notice of motion filed 12 May 2021, to the extent that it seeks additional security for costs at this stage, be dismissed.
(c) How the burden of the costs of each notice of motion will be dealt with be determined on the adjourned date being 3 September 2021.

Catchwords:
PRACTICE AND PROCEDURE – Separate determination – Uniform Civil Procedure Rules 2005 (NSW), r 28.2 – Application to consider whether, amongst other things, property falls into the estate of the deceased before other issues, including whether family provision order should be made – Where there are significant disputes of fact – Where credibility is likely to be in issue – Whether making the order would give effect to the just, quick and cheap resolution of issues – No basis on which to alter the general rule that all matters be determined in the one hearing – notice of motion dismissed
COSTS — Security for costs — Partial security already provided – Second and third Defendants seek an order that requires the Plaintiffs to increase the amount of the indemnity for costs by an appropriate amount – Order for further security at this stage be dismissed

Legislation Cited:
Civil Procedure Act 2006 (NSW) ss 56-58
Succession Act 2006 (NSW) ss 60, 87
Uniform Civil Procedure Rules 2005 (NSW) r 6.3, 28.2, 42.21

Cases Cited:
Brundza v Robbie and Co (No. 2) (1952) 88 CLR 17; [1952] HCA 49
Combis & Staatz as joint and several liquidators of RB Hospitality Holdings Pty Ltd (in Liquidation) v Lee [2020] NSWSC 960
Crawley v Vero Insurance Ltd & Ors [2012] NSWSC 593
Energy Drilling Inc v Petroz NL & Ors [1989] FCA 184; [1989] ATPR 40-954
Li v State of New South Wales [2013] NSWCA 165
Loretta Craig & Ors v Anthony Johnson & Ors [2020] NSWSC 430
Porter v Aalders Auctioneers and Valuers Pty Ltd and Anor [2011] NSWDC 96
Rogers v Baillieu Bullock Wilkinson Pty Ltd (1981) 28 SASR 594
Singer v Berghouse (1993) 114 ALR 521; [1993] HCA 35
Southwell v Bennett [2010] NSWSC 1372
Stephenson Blake & Co v Grant, Legros & Co (1917) 86 LJ Ch 439
Sydney Local Health District v Macquarie International Health Clinic Pty Ltd [2020] NSWCA 274

Category: Procedural rulings
Parties:
Pirapon Cruden (first Plaintiff)
Nattapon Wongpanich (second Plaintiff)
Pornnapa Sae-Ung (first Defendant)
Carolyn Elizabeth Cruden (second Defendant)
Valerie Robyn Kirby (third Defendant)
Representation:
Counsel:
B Burke (Plaintiffs)
No appearance (first Defendant)
L J Ellison (second and third Defendants)
Solicitors:
Turnbull Hill Lawyers (Plaintiffs)
No appearance (first Defendant)
Deutsch Miller (second and third Defendants)

File Number(s): 2020/327240
Publication restriction: Nil

Judgment

HIS HONOUR: The Plaintiffs, Pirapon Cruden and Nattapon Wongpanich, who…

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 Cruden v Sae-ung

Details

AGLC: Cruden v Sae-ung [2021] NSWSC 1070
Case: [2021] NSWSC 1070
Decision Date: 25 August 2021

CaseChat Overview and Summary

In the matter of Cruden v Sae-ung, the dispute centred on the estate of a deceased person, with significant contentions regarding property ownership and potential family provision orders. The case was heard in the Supreme Court of New South Wales. The plaintiffs, Cruden, sought to determine whether certain property fell into the deceased's estate before other issues were considered, including the possibility of a family provision order. The defendants, Sae-ung, opposed this separate determination, arguing that all matters should be resolved in a single hearing.

The primary legal issue before the court was whether it was appropriate to consider the property ownership issue separately from the other disputes, particularly in light of the significant factual disputes and potential credibility issues. The court was required to weigh the principles of just, quick, and cheap resolution of issues against the general rule that all matters should be determined in one hearing. The court also needed to consider the implications of security for costs, particularly whether an increase in the indemnity for costs was justified at that stage of the proceedings.

The court dismissed the notice of motion for a separate determination, finding that there was no basis to alter the general rule that all matters should be resolved in one hearing. The court emphasised the importance of maintaining procedural efficiency and highlighted that significant factual disputes and credibility issues would likely arise in any separate determination. Additionally, the court dismissed the defendants' application for an increase in the security for costs, stating that a partial security for costs had already been provided and that an order for further security at that stage was unwarranted.

In summary, the court upheld the general rule that all matters should be determined in one hearing and dismissed the application for a separate determination. The court also dismissed the application for an increase in the security for costs, noting that the existing partial security was sufficient at that stage.

Orders