Hunt v Farnell - [1992] TASSC 104

COURT: SUPREME COURT OF TASMANIA

CITATION: Hunt & Ors v Farnell [1992] TASSC 104; B26/1992

PARTIES: HUNT, Irene Lillian

JOHNSTONE, Suzanne Maree
ROBINSON, Sally Ruth
BAILEY, Pauline Mary
v
FARNELL, Gerald Ralph
FARNELL, Peter Gerald
FARNELL, Perry Michael

FILE NO/S:  M35/1992
DELIVERED ON:  23 June 1992
JUDGMENT OF:  Zeeman J

Judgment Number: B26/1992
Number of paragraphs: 7

Serial No B26/1992

List "B"

File No M35/1992

IRENE LILIAN HUNT, SUZANNE MAREE JOHNSTONE, SALLY RUTH ROBINSON & PAULINE MARY BAILEY v. GERALD RALPH FARNELL, PETER GERALD FARNELL & PERRY MICHAEL FARNELL

REASONS FOR JUDGMENT ZEEMAN J

23 June 1992

Costs – Security for costs – Order sought against applicants under Testator's Family Maintenance Act 1912 – No sufficient reason for the making of an order.

Myra June Farnell ("the deceased") died on 23 August 1991 leaving surviving her her husband Gerald Ralph Farnell and the issue of her marriage to him, namely Peter Gerald Farnell, Perry Michael Farnell and Judi Angela Farnell, and the issue of her earlier marriage, namely Irene Lilian Hunt, Suzanne Maree Johnstone, Sally Ruth Robinson and Pauline Mary Bailey. Probate of the will of the deceased was granted to the respondents, the executors named therein, on 7 January 1992. By that will, small bequests were made to each of the applicants and to Judi Angela Farnell, and the residue of the estate was left to the respondents. The applicants have sought orders that further provision be made for them out of the estate pursuant to the provisions of the Testator's Family Maintenance Act 1912. The estate is modest in size.

The respondents now seek an order that the applicants pay into court the sum of $5,000.00 as security for the costs of the respondents.

Counsel for the respondents submitted that the provisions of the Rules of the Supreme Court, O 80, Div.II, do not limit the circumstances in which security may be ordered. He cited no direct authority for that proposition, although there is ample authority indicative of that being the position. I do no more than refer to Rajski v. Computer Manufacture & Design Pty Ltd [1982] 2 N.S.W.L.R. 443, Stanley–Hill v Kool [1982] 1 NSWLR 460 and August Investments Pty Ltd v Poseidon Ltd (1971) 2 SASR 60.

Nevertheless, counsel did refer to a number of cases which he said indicated by reason of the wide variety of circumstances in which orders for security had been made that there exists such a wide discretion. I was unable to explore that proposition during argument, as counsel did not attend armed with any of the authorities, but confined himself to referring to notes of relevant cases appearing in the Australian Digest. I would have thought that it was axiomatic that where counsel seeks to argue a proposition of law by reference to authority that he be in a position to refer to that authority by reference to the relevant report. Accordingly, it was left to me after judgment had been reserved, to read the relevant cases.

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 Hunt v Farnell

Details

AGLC: Hunt v Farnell [1992] TASSC 104
Case: [1992] TASSC 104
Decision Date: 23 June 1992

CaseChat Overview and Summary

In the Supreme Court of Tasmania, the case of Hunt and Others v Farnell and Others involved a dispute over the estate of Myra June Farnell, who passed away on 23 August 1991. The applicants, who were the deceased's children from a previous marriage, sought further provision from the estate under the Testator's Family Maintenance Act 1912. The respondents, who were the deceased's husband and children from the current marriage, sought an order for the applicants to provide security for the costs of the respondents. The estate, though modest, was valued at over $45,000.00 at the time of probate.

The court was required to determine the circumstances under which it could order security for costs and whether the application was justified in this case. The respondents argued that the court had a broad discretion to order security for costs and cited several cases to support this proposition. However, the court found that none of these cases indicated a wide, unfettered discretion, and that the authority cited did not support the proposition that the court could order security in cases outside the established categories. The court further found that the application did not provide a sufficient basis for ordering security for costs, as there was no evidence to suggest that the applicants' claim was not bona fide, that they had prosecuted their claim improperly, or that they would be unable to pay costs if ordered.

The court dismissed the application for security for costs, finding that it was entirely misconceived. The court noted that the respondents had confused their roles as executors with that as beneficiaries, and that the real issue was not the availability of assets in the estate, but rather the potential impact on the businesses in which those assets were employed. The court found that the application did not provide a sufficient basis for ordering security for costs, and that the application was therefore dismissed.

The final orders of the court were that the application for security for costs be dismissed and that the applicants pay the respondents' costs of the application.

Orders