Garrett-Jones v Kendall

[2020] ACTCA 27

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:

Garrett-Jones v Kendall

Citation:

[2020] ACTCA 27

Hearing Date:

15 May 2020

DecisionDate:

15 May 2020

Before:

Mossop J

Decision:

See [35]

Catchwords:

APPEAL – APPLICATION FOR LEAVE TO APPEAL – Appeal from an interlocutory decision – decision restrained solicitor from acting for executor in probate proceedings – where solicitor was involved in making of contested will – where solicitor’s evidence will be of significance in substantive hearing – leave to appeal dismissed

Legislation Cited:

Guardianship and Management of Property Act 1991 (ACT)

Cases Cited:

Arrow International Australia Ltd v Group Konstrukt Pty Ltd[2012] ACTCA 37; 7 ACTLR 48

Banks v Goodfellow (1870) LR 5 QB 549
In the Estate of Shirley Eileen Kendall [2020] ACTSC 42
Kallinicos v Hunt [2005] NSWSC 1181; 64 NSWLR 561
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
Ren v Jiang [2014] NSWCA 1

Wu v Avin Operations Pty Ltd (No 3) [2006] FCA 1321

Parties:

Lesley Ann Garrett-Jones (Applicant)

Richard Philip Kendall (Respondent)

Representation:

Counsel

T Crispin (Applicant)

G Blank (Respondent)

Solicitors

Ray Swift Moutrage & Associates (Applicant)

Farrar Gesini Dunn (Respondent)

File Number:

ACTCA 9 of 2020

Decision under appeal: 

Court:  Supreme Court of the ACT

Before:  Crowe AJ

Date of Decision:          25 February 2020

Case Title:  In the Estate of Shirley Eileen Kendall

Citation: [2020] ACTSC 42

MOSSOP J:

Introduction

1. This is an application for leave to appeal to the Court of Appeal from an interlocutory decision made by a judge (the primary judge): see In the Estate of Shirley Eileen Kendall [2020] ACTSC 42. His Honour made an order restraining a solicitor (the solicitor) from acting for the executor in probate proceedings. In summary, that was because the solicitor’s evidence was likely to be of significance in determining the testamentary capacity of the deceased and there was likely to be a significant attack upon the reliability of her evidence.

1. The proceedings relate to a will executed on 21 May 2008.  That will was witnessed by the solicitor and her clerk.  Prior to the making of the 2008 will the testator’s husband had been suffering from dementia and he was moved into an aged care home with a dementia facility, shortly before the 2008 will was executed.  He died in May 2009.  Shortly before the death of her husband, a son of the testator, Donald Kendall, commenced proceedings in the ACT Civil and Administrative Tribunal (ACAT), seeking the appointment of a guardian and manager in relation to the testator’s affairs.  That application was heard and dismissed by the Tribunal on 4 August 2009.

1. In June 2017 the testator died and her daughter, Lesley Garrett-Jones, was granted probate of the 2008 will in December 2018.  The grant was made in common form.  The solicitor acted for Lesley Garrett-Jones in obtaining probate.

1. In October 2019 Richard Philip Kendall (known as Philip Kendall), another son of the testator, filed an Application in Proceeding…