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Hana v Shad Legal Services Pty Ltd

Hana v Shad Legal Services Pty Ltd

Case [2021] NSWSC 601 31 May 2021

Abuse of Process

Standing

Res Judicata

Civil Litigation & Procedure

Succession Law

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Supreme Court

New South Wales

Medium Neutral Citation: Hana v Shad Legal Services Pty Ltd [2021] NSWSC 601
Hearing dates: 7 May 2021
Date of orders: 31 May 2021
Decision date: 31 May 2021
Jurisdiction: Common Law
Before: Beech-Jones J
Decision:
(1)   The statement of claim be struck out;
(2)   The plaintiff file and serve any amended statement of claim on or before 27 June 2021;
(3)   The proceedings be listed for directions before the Registrar at 9.00am on 6 July 2021 at 9.00am;
(4)   The plaintiff pay the defendant’s costs of its notice of motion dated 29 January 2021; and
(5)   The notice of motion be otherwise dismissed.

Catchwords:
SUMMARY DISMISSAL – abuse of process – Anshun estoppel – plaintiff unsuccessful in probate proceedings – failed to show testator knew and approved of will making plaintiff sole beneficiary – defendant’s employed solicitor drafted and supervised execution of will – alleged defendant’s failures meant plaintiff lacked evidence to prove will approved – attempt to relitigate probate proceedings – statement of claim struck out

Cases Cited:
D’Orta-Ekenaike v Victoria Legal (2005) 223 CLR 1; [2005] HCA 12
Egri v DRG Australia Ltd (1988) 19 NSWLR 600
Ekes v Commonwealth Bank of Australia [2014] NSWCA 336
Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231
Harris for and on behalf of the estate of Harris and Harris v Rapisarda [2019] NSWSC 1088
Henderson v Henderson (1843) 3 Hare 100, 67 ER 313
Kuligowskiv Metrobus (2004) 220 CLR 363
Mekhail v Hana; Mekhail v Hana [2019] NSWCA 197
Mekhail v Hana; Mekhail v Hana; In the Estate of Nadia Mekhail (No 3) [2018] NSWSC 1452
O’Shane v Harbour Radio Pty Ltd (2013) 85 NSWLR 698
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
Redowood Pty Limited v Link Market Services Pty Limited (formerly known as ASX Perpetual Registrars Limited) [2007] NSWCA 286
Rippon v Chilcott Pty Ltd [2001] NSWCA 142; (2001) 53 NSWLR 198
State of Bank New South Wales Ltd v Stenhouse Ltd (1997) Aust Tort Reports 81-423
Tomlinson v Ramsey Food Processing Pty Limited (2015) 256 CLR 507; [2015] HCA 2
Veall v Veall (2015) 46 VR 123; [2015] VSCA 60
Williams v Spautz (1992) 174 CLR 509

Texts Cited:
K R Handley AQ CStj QC, Spencer Bower and Handley: Res Judicata, Lexis Nexus, 5th edition, 2019

Category: Principal judgment
Parties: Georgette Hana (Plaintiff)
Shad Legal Services Pty Ltd (Defendant)
Representation:
Counsel:
JC Lee; BJS Smith (Plaintiff)
GES Ng (Defendant)
Solicitors:
Darby Jones Lawyers (Plaintiff)
YPOL Lawyers (Defendant)

File Number(s): 2020/313930

Judgment

This judgment concerns a well-argued notice of motion seeking the dismissal of proceedings against a solicitor for professional negligence on the basis that they constitute an abuse of process. It is contended that the proceedings are an attempt to relitigate probate proceedings that were determined adversely to the plaintiff in these proceedings, Georgette Hana. For the reasons that follow, I accept that the proceedings as formulated in the…

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 Hana v Shad Legal Services Pty Ltd

Details

AGLC: Hana v Shad Legal Services Pty Ltd [2021] NSWSC 601
Case: [2021] NSWSC 601
Decision Date: 31 May 2021

CaseChat Overview and Summary

In the case of Hana v Shad Legal Services Pty Ltd, the plaintiff sought damages for the defendant's alleged negligence in the preparation of a will, which resulted in the plaintiff being unsuccessful in probate proceedings. The defendant was a law firm that had drafted and supervised the execution of the will. The plaintiff, who was the sole beneficiary named in the will, alleged that the defendant's negligence meant that she lacked evidence to prove that the testator had approved of the will. The plaintiff attempted to relitigate the probate proceedings in the current action, which was deemed an abuse of process. The court had to determine whether the Anshun estoppel applied, which would prevent the plaintiff from bringing a claim that was inconsistent with a previous decision. The court found that the Anshun estoppel applied, and the plaintiff's attempt to relitigate the probate proceedings was an abuse of process.

The court held that the Anshun estoppel applied to prevent the plaintiff from bringing a claim that was inconsistent with a previous decision. The court found that the plaintiff had unsuccessfully argued in the probate proceedings that the testator knew and approved of the will making her the sole beneficiary. The court held that the plaintiff had failed to show that the testator knew and approved of the will, and therefore, the plaintiff lacked evidence to prove that the will was approved. The court found that the plaintiff's attempt to relitigate the probate proceedings in the current action was an abuse of process. The court held that the plaintiff's claim was an abuse of process because it was an attempt to relitigate the probate proceedings, which had already been decided. The court found that the defendant's employed solicitor had acted with reasonable care and skill in drafting and supervising the execution of the will.

The court held that the defendant was not liable for the plaintiff's failure to successfully argue in the probate proceedings that the testator knew and approved of the will. The court held that the defendant's employed solicitor had acted with reasonable care and skill in drafting and supervising the execution of the will. The court found that the plaintiff's claim was an abuse of process, and therefore, the statement of claim was struck out. The court ordered that the defendant pay the plaintiff's costs of the proceeding. The court held that the Anshun estoppel applied, and the plaintiff was estopped from bringing a claim that was inconsistent with a previous decision. The court found that the plaintiff's attempt to relitigate the probate proceedings was an abuse of process, and the defendant was not liable for the plaintiff's failure to successfully argue in the probate proceedings that the testator knew and approved of the will.

Orders