Grove v Kenworthy-Groen - [2024] WASC 365

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   GROVE v KENWORTHY-GROEN & ORS [2024] WASC 365
CORAM:   MASTER RUSSELL
HEARD:   14 MAY 2024
DELIVERED          :   8 OCTOBER 2024
FILE NO/S:   CIV 2249 of 2020
BETWEEN:   NICHOLAS WILLIAM GROVE
Plaintiff
AND
SIMON DIRK KENWORTHY-GROEN
First Defendant
SIMON DIRK KENWORTHY-GROEN as executor of the estate of WILLIAM GROVE
Second Defendant
SIMON KENWORTHY-GROEN as trustee for THE GROVE FAMILY HOUSE TRUST
Third Defendant
ANDREW HENDRICK GROVE as trustee for THE GROVE FAMILY HOUSE TRUST
Fourth Defendant
SIMON KENWORTHY-GROEN as trustee for THE GROVE GRAND FATHER FAMILY TRUST
Fifth Defendant
JOHN WILLEM GROVE
Sixth Defendant

Catchwords:

Practice and procedure - Application to remove party pursuant to O 18 r 6(2)(a) of the Rules of the Supreme Court 1971 (WA) - Whether the party is a necessary party to the proceeding - Whether the party's legal interests will be directly affected by any order which might be made in the proceedings - Turns on own facts

Legislation:

Rules of Supreme Court 1971 (WA) O 18 r 6, O 18 r 6(2), O 18 r 6(2)(a)

Result:

Second defendant's application that sixth defendant be removed as a party to the proceeding granted

Category: B

Representation:

Counsel:

Plaintiff	:	Mr P G Donovan
First Defendant	:	No appearance
Second Defendant	:	Mr L A Tsaknis
Third Defendant	:	No appearance
Fourth Defendant	:	No appearance
Fifth Defendant	:	Mr R Nash
Sixth Defendant	:	Mr D Robinson

Solicitors:

Plaintiff	:	MDS Legal
First Defendant	:	No appearance
Second Defendant	:	Fort Knox Legal
Third Defendant	:	No appearance
Fourth Defendant	:	No appearance
Fifth Defendant	:	Croftbridge
Sixth Defendant	:	Williams + Hughes

Case(s) referred to in decision(s):

Brooks & Anor v Young & Ors [2018] SASCFC 81; (2018) 131 SASR 365
Commissioner of Stamp Duties (Qld) v Livingston (1964) 112 CLR 12
Elovalis v Elovalis [2008] WASCA 141 (S)
Grove v Fisher & Anor [2002] WASC 247
North West Pilots Pty Ltd as trustee for the Port Hedland Pilots Unit Trust trading as Port Hedland Pilots v Daniel [2023] WASCA 122
North West Pilots Pty Ltd as trustee for the Port Hedland Pilots Unit Trust trading as Port Hedland Pilots v Daniel [No 2] [2023] WASC 98
Official Receiver in Bankruptcy v Schultz & Anor (1990) 170 CLR 306
O'Sullivan v O'Sullivan Executor of the Estate of JM O'Sullivan [2021] WASC 168
Public Trustee v Peter Patrick Bebich as executor of the estate of Yanja Bebich (Dec) [2014] WASC 340
Saffari v State of Western Australia [2024] WASCA 77
Sawiak v The Public Trustee, unreported; SCt of WA; Library No 930479
Simon Dirk Kenworthy-Groen as executor of the estate of William Grove v Grove [2023] WASC 87
Trans Petroleum (Australia) Pty Ltd v United Petroleum (WA) Pty Ltd [No 2] [2022] WASC 460
Wurth Australia Pty Ltd v Burgess [2012] WASC 504

MASTER RUSSELL:

Introduction

This proceeding is one of several proceedings in this court in relation to the estate of the late…

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.

Keep reading for free

Create a free CaseChat account to read Grove v Kenworthy-Groen and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2024] WASC 365
Decision Date: 8 OCTOBER 2024

CaseChat Overview and Summary

In the case of Grove v Kenworthy-Groen, the applicant sought to have the respondent removed from the proceedings on the basis that they were not a necessary party. The dispute arose from a complex web of property dealings and financial transactions involving multiple parties, and the applicant contended that the respondent's involvement in the litigation was unnecessary and prejudicial to the proceedings. The case was heard in the Supreme Court of Western Australia.

The central legal issue before the court was whether the respondent was a necessary party to the proceedings. The court had to determine if the respondent's legal interests would be directly affected by any order that might be made in the proceedings. The court also had to consider the criteria set out in rule 18 of the Rules of the Supreme Court 1971 (WA), which provides that a party may be removed if they are not a necessary party. The court had to assess whether the respondent's presence in the proceedings was necessary to ensure that the applicant's claims were fully and effectively determined.

The court found that the respondent was not a necessary party to the proceedings. The court noted that the respondent's legal interests were not directly affected by any order that might be made in the proceedings. The court also found that the respondent's presence in the proceedings was not necessary to ensure that the applicant's claims were fully and effectively determined. The court concluded that the respondent could be removed from the proceedings as they were not a necessary party. The court made an order that the respondent be removed from the proceedings.

This decision provides useful guidance to practitioners on the criteria for determining whether a party is a necessary party to proceedings. It highlights the importance of assessing whether a party's legal interests will be directly affected by any order that might be made in the proceedings. The decision also confirms that a party may be removed from proceedings if they are not a necessary party, even if their presence in the proceedings may be beneficial to the other parties.

Orders