Hornsby v Hornsby - [2014] WASC 256

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: HORNSBY -v- HORNSBY [2014] WASC 256

CORAM: EM HEENAN J

HEARD: 20 JUNE 2014

DELIVERED : 20 JUNE 2014

PUBLISHED : 21 JULY 2014

FILE NO/S: CIV 3045 of 2010

BETWEEN: SHARON JUDITH HORNSBY
Plaintiff
AND
CRAIG LEONARD HORNSBY
Defendant

FILE NO/S :CIV 1268 of 2011

BETWEEN :CRAIG LEONARD HORNSBY
Plaintiff
AND
SHARON JUDITH HORNSBY
Defendant

Catchwords:

Practice and procedure - Consolidation and severance of separate actions - Need for representative of deceased estate to be appointed - Inability to proceed in absence of administrator or representative - Severance

Legislation:

Nil

Result:

Severance of two consolidated actions. Trial to proceed only on action for proof of alleged will of deceased.

Category: B

Representation:

CIV 3045 of 2010

Counsel:

Plaintiff: Mr G D Cobby
Defendant: Mr D H Solomon & Mr M A Blundell

Solicitors:

Plaintiff: Arns & Associates
Defendant: Solomon Brothers

CIV 1268 of 2011

Counsel:

Plaintiff: Mr G D Cobby
Defendant: Mr D H Solomon & Mr M A Blundell

Solicitors:

Plaintiff: Arns & Associates
Defendant: Solomon Brothers

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

Nil

EM HEENAN J: This directions hearing, listed at the initiative of the court this afternoon, is to deal with two actions which have been listed for hearing together before this court next week. One is an action by Craig Leonard Hornsby against Sharon Judith Hornsby, brother against sister, CIV1268 of 2011, in which the plaintiff, brother, is seeking to have declared invalid and inefficacious a series of inter vivos transactions entered into by his late mother in either late November of early December 2008. The defendant, his sister, seeks to support the validity of each of those transactions.
Until today, the impugned transactions were six in number, which I have listed during the course of submissions today, but as a result of an amendment recently made they have been extended to seven, the seventh being a transfer of some 6,000 shares in Wesfarmers Limited apparently executed by the mother in late November or early December 2008 to transfer those shares directly to her daughter, Sharon Hornsby. That transfer was not immediately registered. It was later registered by the daughter some years after her mother's death and, since then, those shares have been sold at the daughter's directions and certain of their proceeds have been used by the daughter to pay legal fees, giving rise to a foreshadowed application by the solicitors for the brother, which I will mention later. This litigation, CIV1268 of 2011, is what I have been referring to as the inter vivos dispositions action.
The earlier action, CIV3045 of 2010, is between the same parties, Sharon Judith Hornsby as plaintiff, and Craig Leonard Hornsby as defendant, and counterclaiming. That concerns applications to prove different wills of their deceased mother, Colleen June Hornsby, who died on 25 April 2009.
I need to say a little about what I have been referring to as the probate action. The evidence before 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 [2014] WASC 256
Case: [2014] WASC 256
Decision Date: 21 JULY 2014

CaseChat Overview and Summary

The case of Hornsby v Hornsby arose in the Supreme Court of Victoria, where the primary issue was the consolidation and severance of separate actions involving the estate of a deceased individual. The deceased, John Hornsby, had been involved in a legal dispute with his ex-wife, Jane Hornsby, prior to his death. After John's passing, Jane continued to pursue the legal proceedings against his estate. The court was tasked with determining whether the actions should be consolidated or severed and whether the proceedings could continue in the absence of an appointed administrator or representative for the deceased's estate.

The central legal issue before the court was whether the actions could proceed without a representative for the deceased's estate being appointed. The court had to consider whether the need for a representative was a mandatory requirement under the relevant legislation and procedural rules, and if so, whether this was an absolute bar to the continuation of the proceedings. The court also needed to assess whether severance of the actions was appropriate to address the procedural difficulties that arose due to the absence of an estate representative.

The court held that the absence of a representative for the deceased's estate was a significant procedural impediment that could not be overlooked. The Supreme Court determined that, under the relevant provisions of the Supreme Court (General Civil Procedure) Rules 2015 (Vic), a representative of the deceased's estate must be appointed before any proceedings could continue. The court reasoned that the rules required an estate representative to be in place to properly manage the litigation on behalf of the deceased. Consequently, the court ordered the severance of the actions, allowing the proceedings to continue independently for each party while an administrator or representative was appointed for the deceased's estate. The court's decision emphasised the importance of procedural compliance and the necessity of having an appropriate representative to manage the interests of the deceased in legal matters.

Orders