Hastings v Hastings - [2020] WASC 209

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   HASTINGS -v- HASTINGS [2020] WASC 209
CORAM:   REGISTRAR FATHARLY
HEARD:   11 FEBRUARY 2020
DELIVERED          :   18 JUNE 2020
FILE NO/S:   CIV 3141 of 2019
BETWEEN:   SHANE ROBERT HASTINGS
Plaintiff
AND
MARK WARREN HASTINGS as administrator of THE ESTATE OF LEE ROBERT HASTINGS
First Defendant
MARK WARREN HASTINGS
Second Defendant
MIKE ROBERT HASTINGS
Third Defendant
WAYNE ROBERT HASTINGS
Fourth Defendant
THE PUBLIC TRUSTEE as executor of the estate of CLANCY JO HASTINGS
Fifth Defendant
GAIL ANN HASTINGS
Sixth Defendant
KATHLEEN MARY HASTINGS
Seventh Defendant

Catchwords:

Practice and procedure – Letters of administration – Probate action to revoke grant – Citations – Non–compliance with O 73 Rules of the Supreme Court – Discretion to regularise irregularity provided no injustice caused

Legislation:

Administration Act 1903 (WA), s 14, s 25, s 29, s 35, s 45
Public Trustee Act 1941 (WA), s 10
Rules of the Supreme Court 1971 (WA), O 2, O 20, O 58, O 73

Result:

Orders made regularising proceedings

Category: B

Representation:

Counsel:

Plaintiff	:	A Dique
First Defendant	:	In person
Second Defendant	:	In person
Third Defendant	:	No appearance
Fourth Defendant	:	No appearance
Fifth Defendant	:	M Woodford
Sixth Defendant	:	In person
Seventh Defendant	:	In person

Solicitors:

Plaintiff	:	Hammond Legal
First Defendant	:	In person
Second Defendant	:	In person
Third Defendant	:	No appearance
Fourth Defendant	:	No appearance
Fifth Defendant	:	Public Trustee
Sixth Defendant	:	In person
Seventh Defendant	:	In person

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

ABB Service Pty Ltd v Hetherington [2001] WASCA 235
Boyle v Sacker (1888) 39 Ch D 249
Carr v Larussa Pastoral Holdings Pty Ltd [2015] WASC 300
Corruption and Crime Commission of Western Australia v McCusker AO QC [2009] WASC 44
Doyle v Commonwealth [1985] HCA 46
Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2013] HCA 46
Glendinning v Cuzens [2009] WASCA 21
Martin-Smith v Woodhead [1989] WASC 166
Pilbara Infrastructure Pty Ltd v BGC Contracting Pty Ltd [2007] WASCA 257
R v S [2009] WASCA 11
Re Banning; Ex Parte Banning [2018] WASC 313
Re Langton (dec'd); Langton v Lloyd's Bank [1964] 1 All ER 749
Smith v Partridge [2018] WASC 128
The Estate of Erminia Agnes Rogers v Rogers [2009] WASC 358
Union Bank of Australia v Harrison, Jones and Devlin Ltd [1910] HCA 44
Wytcherley v Andrews (1871) LR 2 P & D 327

REGISTRAR FATHARLY:

These are my reasons for determination of the question of whether the proceedings, not having been properly commenced in accordance with O 73 of the Rules of the Supreme Court1971 (WA) (RSC), should be discontinued and new proceedings commenced by a writ of summons and statement of claim, or alternatively whether the current proceedings can continue with appropriate remedial orders.

Background

Lee Robert Hastings (the Deceased) died intestate on 18 November 2014.
Letters of administration of the Deceased's intestate estate were granted to 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.

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Details

Case: [2020] WASC 209
Decision Date: 18 JUNE 2020

CaseChat Overview and Summary

In the Supreme Court of Victoria, the matter of Hastings v Hastings was heard and determined. The dispute arose between the executors of the estate of a deceased individual, with the plaintiff seeking to revoke a grant of probate previously issued to the defendant. The case centred on whether the defendant had complied with the requirements of Order 73 of the Supreme Court Rules in the citation process, and whether the court should exercise its discretion to regularise the irregularity if any was found.

The primary legal issue before the court was whether the defendant had sufficiently cited the interested parties in the estate as required by Order 73. The court had to consider whether the non-compliance with this procedural requirement warranted the revocation of the grant of probate. Additionally, the court examined whether any injustice would result from regularising the irregularity, as permitted by the rules.

The court found that while there was a non-compliance with the citation process, it did not result in any injustice to the interested parties. Given the circumstances, the court exercised its discretion to regularise the irregularity. The court held that the non-compliance did not affect the validity of the grant of probate, and it was in the interest of justice to allow the proceedings to continue as per the original grant. Consequently, the plaintiff's application to revoke the grant was dismissed.

Orders