Page v Rankine - [2020] NSWSC 902

Supreme Court

New South Wales

Medium Neutral Citation: Page v Rankine [2020] NSWSC 902
Hearing dates: 15 July 2020
Date of orders: 15 July 2020
Decision date: 15 July 2020
Jurisdiction: Equity
Before: Ward CJ in Eq
Decision:
1.   Order that the notice to produce to Court issued by the defendant to the plaintiff, dated 12 June 2020, is set aside.
2. Order pursuant to ss 61 and 63 of the Civil Procedure Act 2005 (NSW), and the inherent jurisdiction of the Court, that the notices of motion filed by the defendant on 15 June 2020 and 23 June 2020 be set aside, with liberty to the defendant to file within seven days an amended notice of motion limited only to:
(a) an application for an extension of time to comply with orders made on 30 March 2020 pursuant to r 1.12(1) of the Uniform Civil Procedure Rules 2005 (NSW); and
(b) an application to set aside or vary the orders of Hallen J made on 30 March 2020 pursuant to r 36.5 of the Uniform Civil Procedure Rules 2005 (NSW).
3.   Order that the defendant pay the plaintiff’s costs of the notice of motion filed by the plaintiff on 23 June 2020.
4.   Order that any notice of motion filed by the defendant in exercise of the liberty granted by me will be returnable for directions before me at 8.30am on 28 July 2020.

Catchwords:
CIVIL PROCEDURE — Probate and administration of estates — Contentious proceedings
CIVIL PROCEDURE — Interlocutory applications — where application to set aside notice to produce and notice of motion — where notice to produce and notices of motion imprecise, misconceived and otherwise incompetent

Legislation Cited:
Civil Procedure Act 2005 (NSW), ss 56, 61, 63
Probate and Administration Act 1898 (NSW), s 93
Supreme Court Rules 1970 (NSW), Pt 78 r 48
Uniform Civil Procedure Rules 2005 (NSW), rr 1.12(1), 18.7, 34.1, 36.5

Cases Cited:
Douglas Corporation Pty Ltd v Currico Nominees Pty Ltd [2007] NSWSC 113
Norris v Kandiah [2007] NSWSC 1296
Penrith Rugby League Club Ltd v Brown [2004] NSWSC 1182

Category: Procedural and other rulings
Parties: James Michael Page (Plaintiff)
Anthony John Rankine (Defendant)
Representation:
Counsel:
C Birtles (Plaintiff)
No appearance by the defendant
Solicitors:
Bartier Perry Pty Ltd (Plaintiff)

File Number(s): 2019/00400798
Publication restriction: Nil

EX TEMPORE JUDGMENT

HER HONOUR: This is an application by notice of motion filed on 23 June 2020 by the executor, James Michael Page, of the estate of the deceased, the late John Rankine, seeking two kinds of relief: first, that a notice to produce to Court issued by the defendant to the plaintiff and dated 12 June 2020 be set aside; second, orders pursuant to ss 61 and/or 63 of the Civil Procedure Act 2005 (NSW) (Civil Procedure Act) that the notice of motion filed by the defendant on 15 June 2020 be set aside with liberty to the defendant to file an amended notice of motion limited in two respects…

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 Page v Rankine

Details

AGLC: Page v Rankine [2020] NSWSC 902
Case: [2020] NSWSC 902
Decision Date: 15 July 2020

CaseChat Overview and Summary

The case of Page v Rankine involved a dispute concerning the administration of an estate. The parties were Page, the personal representative of an estate, and Rankine, who was the executor of a will. Rankine applied for an order to set aside a notice to produce and a notice of motion filed by Page. The application was brought in the Supreme Court of New South Wales. The dispute centred around the adequacy and precision of the notices that had been served, which Rankine argued were imprecise, misconceived, and otherwise incompetent.

The legal issues before the court included whether the notices were sufficiently precise to warrant a response, and if the application to set aside was justified. The court had to determine whether the notices complied with the rules governing civil procedure, specifically regarding the clarity and specificity required in notices to produce and notices of motion. Furthermore, the court had to assess whether the application to set aside was an appropriate remedy given the circumstances.

In its judgment, the court held that the notices to produce and notices of motion were indeed imprecise and misconceived. The notices lacked the required specificity and detail to allow for a proper response, thus rendering them incompetent. The court found that the application to set aside was justified, as the notices failed to meet the necessary standards of clarity and precision. Consequently, the application was granted, and the notices were set aside. The court emphasised the importance of adhering to procedural rules to ensure fair and effective administration of justice.

Orders