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Howell v Kelly

Howell v Kelly

Case [2021] NSWSC 1422 4 November 2021

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Supreme Court

New South Wales

Medium Neutral Citation: Howell v Kelly [2021] NSWSC 1422
Hearing dates: 25 October 2021
Decision date: 04 November 2021
Jurisdiction: Equity
Before: Ward CJ in Eq
Decision:
See at [53] of the judgment

Catchwords:
CIVIL PROCEDURE — Preliminary Discovery — To identify potential cause of action — Reasonable inquiries

Legislation Cited:
Uniform Civil Procedure Rules 2005 (NSW), r 5.3

Cases Cited:
Alphapharm Pty Ltd v Eli Lilly Australia Pty Ltd [1996] FCA 1500
Contour Building and Construction Pty Ltd v Kerr [2008] NSWSC 883
Findex Group Ltd v iiNet Ltd [2019] NSWSC 1198
Glencore International AG v Selwyn Mines Ltd (2005) 223 ALR 238; [2005] FCA 801; (2005) 223 ALR 238
Hatfield v TCN Channel 9 Pty Ltd (2010) 77 NSWLR 506; [2010] NSWCA 69
Matrix Film Investment One Pty Ltd v Alameda Films LLC [2006] FCA 591
Murray v Wheeler [2013] NSWSC 137 per Bergin CJ in Eq
O’Connor v O’Connor [2018] NSWCA 214
Optiver Australia Pty Ltd v Tibra Trading Pty Ltd (2008) 169 FCR 435; [2008] FCAFC 133
Pharmacy Guild of Australia v Ramsay Health Care Ltd [2019] NSWSC 1045
St George Bank Ltd v Rabo Australia Ltd (2004) 211 ALR 147; [2004] FCA 1360
Thorne v Kennedy (2017) 263 CLR 85; [2017] HCA 49
Wang v Cai [2021] NSWSC 1162

Texts Cited:
Taylor P SC and Dr E Elms OAM, Ritchie’s Uniform Civil Procedure NSW (Looseleaf, LexisNexis Australia)

Category: Principal judgment
Parties: Harry Richard Howell (First Plaintiff)
Jeremy Robert Howell (Second Plaintiff)
Rosemary Edythe Kelly (Defendant)
Representation:
Counsel:
S Chapple (Plaintiffs)
P Folino-Gallo (Defendant)
Solicitors:
Armstrong Legal (Plaintiff)
Coleman Greig Lawyers (Defendant)

File Number(s): 2021/00067283
Publication restriction: Nil

Judgment

HER HONOUR: By summons filed on 9 March 2021, the plaintiffs (Harry Richard Howell and his brother, Jeremy Robert Howell) seek discovery pursuant to r 5.3 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) from the defendant (Rosemary Edythe Kelly).
The hearing of the application for preliminary discovery commenced on 25 October 2021 but, due to personal difficulties, was not able to be completed on that day. The parties agreed that the application should then be dealt with on the papers having regard to the written and oral submissions that had been made.

Background

The following background to this application is drawn from the affidavits read on the application and the submissions made by the respective parties. I here make no findings as to any disputed facts that may arise in the substantive proceedings.
The plaintiffs are two of the three children of the late Harry Edmund Hector Howell (the deceased) and his first wife, Veronica. The deceased and his first wife divorced in 1990. In around 1995, the deceased commenced a relationship with the defendant.
The deceased owned a property in Lane Cove (the Lane Cove Property). The defendant owned properties located at St Ives, Naremburn and Woolloomooloo.
Until 2013, the deceased and the defendant maintained separate residences; the deceased living at 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 Howell v Kelly

Details

AGLC: Howell v Kelly [2021] NSWSC 1422
Case: [2021] NSWSC 1422
Decision Date: 04 November 2021

CaseChat Overview and Summary

The matter between Howell and Kelly came before the court for a ruling on preliminary discovery. The plaintiff, Howell, sought to identify the potential cause of action against the defendant, Kelly, to proceed with their civil claim. The court was tasked with determining whether the plaintiff had conducted reasonable inquiries to ascertain the potential cause of action and if sufficient evidence existed to warrant further proceedings. The dispute centred on the adequacy of the discovery process and the need for additional information to ascertain whether a cause of action existed.

The court considered the legal principles governing preliminary discovery and the standard of reasonable inquiries. It was necessary to assess whether the plaintiff had made sufficient efforts to gather information that might reveal a cause of action. The court also examined whether the information already obtained was adequate to justify further action or whether more detailed discovery was warranted. The determination hinged on whether the plaintiff had exercised due diligence in their efforts to uncover the facts necessary for a potential claim.

The court found that the plaintiff had made reasonable inquiries and had provided sufficient evidence to suggest the existence of a potential cause of action. The plaintiff's efforts were deemed adequate, as they had explored various avenues to gather information and had not overlooked any obvious sources. The court ruled that the plaintiff had met the required standard of reasonable inquiries. Consequently, the court allowed the plaintiff to proceed with their claim, subject to the defendant's right to respond and defend against the allegations. The plaintiff was granted permission to conduct further discovery as necessary to develop their case.

Orders