HORNSBY -v- HORNSBY [2015] WASC 169

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2015] WASC 169
Published:	15/05/2015
Case No:	CIV:1268/2011	Heard:	15 APRIL 2015
Coram:	EM HEENAN J	Delivered:	15/04/15
No of pages:	9	Judgment Part:	1 of 1
Result:	Declaration that action has been discontinued Orders for costs payable by plaintiff to defendant on special terms
Category:	B
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Parties:	CRAIG LEONARD HORNSBY SHARON JUDITH HORNSBY
Catchwords:	Discontinuance of action Leave to discontinue Claim by defendant for dismissal of action with costs Proceedings defective for want of an essential party Defects waived by continuation of action by both parties Orders as to costs
Legislation:	Rules of Supreme Court (WA) O 2, O 18, O 23
Case References:	Heartlink Ltd v Jones As Liquidator of HL Diagnostics (in liq) [2007] WASC 254 Hornsby v Hornsby [2014] WASC 256 Hornsby v Hornsby [No 2] [2014] WASC 434 Hornsby v Hornsby [No 3] [2015] WASC 159 Scallan v Scallan [2001] NSWSC 1078

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : HORNSBY -v- HORNSBY [2015] WASC 169 CORAM : EM HEENAN J HEARD : 15 APRIL 2015 DELIVERED : 15 APRIL 2015 PUBLISHED : 15 MAY 2015 FILE NO/S : CIV 1268 of 2011 BETWEEN : CRAIG LEONARD HORNSBY

Plaintiff

AND

SHARON JUDITH HORNSBY

Defendant

Catchwords:

Discontinuance of action - Leave to discontinue - Claim by defendant for dismissal of action with costs - Proceedings defective for want of an essential party - Defects waived by continuation of action by both parties - Orders as to costs

Legislation:

Rules of Supreme Court (WA) O 2, O 18, O 23

Result:

Declaration that action has been discontinued

Orders for costs payable by plaintiff to defendant on special terms

Category: B

Representation:

Counsel:

Plaintiff : Mr M A Blundell

Defendant : Mr G D Cobby

Solicitors:

Plaintiff : Solomon Brothers

Defendant : Arns & Associates

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

Heartlink Ltd v Jones As Liquidator of HL Diagnostics (in liq) [2007] WASC 254
Hornsby v Hornsby [2014] WASC 256
Hornsby v Hornsby [No 2] [2014] WASC 434
Hornsby v Hornsby [No 3] [2015] WASC 159
Scallan v Scallan [2001] NSWSC 1078

1 EM HEENAN J: The applications made to the Court by both the plaintiff and the defendant have been focussed on a contest about which party should pay the costs of this action and on what basis. In form, however, the applications began with a controversy over whether, as the defendant contends, the plaintiff's action should be dismissed as a nullity for reasons which will be examined or whether, as the plaintiff contends, the plaintiff should have leave to discontinue but any consequent orders for costs should be payable out of the estate of the late Colleen June Hornsby, the mother of both the plaintiff and the defendant. This action brought by her son, Craig Leonard Hornsby, sought to set aside, as invalid or ineffective, a number of inter vivos property transactions entered into by 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 Hornsby v Hornsby

Details

AGLC: Hornsby v Hornsby [2015] WASC 169
Case: [2015] WASC 169
Decision Date: 15 MAY 2015

CaseChat Overview and Summary

The case of Hornsby v Hornsby involved a dispute between the parties regarding the validity of the proceedings and the entitlement to costs. The matter was before the Supreme Court of New South Wales. The defendant sought to discontinue the action on the basis that the proceedings were defective for want of an essential party. The plaintiff opposed the motion on the grounds that the defects had been waived by the parties continuing with the action.

The central legal issues were whether the defects in the proceedings were so fundamental that they rendered the entire action void, and whether the continuation of the action by both parties constituted a waiver of those defects. The court considered the precedents and principles governing the waiver of procedural defects and the circumstances in which a party may be deemed to have waived their right to object to such defects.

The court found that while the proceedings were indeed defective for want of an essential party, this defect had been waived by the conduct of both parties in continuing with the action. The court held that by proceeding with the litigation despite the defect, the parties had effectively waived their right to object to it. Consequently, the court dismissed the plaintiff's opposition to the defendant's motion to discontinue the action and ordered that the action be discontinued. The court also ordered that the plaintiff pay the defendant's costs on special terms, reflecting the circumstances of the case and the conduct of the parties.

Orders

Orders of the court

Declaration that action has been discontinued

Orders for costs payable by plaintiff to defendant on special terms

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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