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Re Estates Brooker-Pain and Soulos

Re Estates Brooker-Pain and Soulos

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Case Copied 28 June 2019 53 min read

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Re Estates Brooker-Pain and Soulos [2019] NSWSC 671
Hearing dates: 18 March 2019
Decision date: 28 June 2019
Jurisdiction: Equity - Probate List
Before: Lindsay J
Decision:
Case Management orders proposed for control of use of subpoenas for the production of documents, and notices to produce to court, in contested probate proceedings.

Catchwords:
SUCCESSION — Wills and Probate — Consideration of principles informing practice of the Court relating to compulsory production of documents — Before pleading and service of evidence

CIVIL PROCEDURE — Court administration — Overriding purpose — Just, quick and cheap resolution

CIVIL PROCEDURE — Notices to produce — Before hearing — Probate proceedings — Practice Note SC Eq 11
CIVIL PROCEDURE — Subpoenas — To produce documents or things — Probate proceedings — Practice Note SC Eq 11
Legislation Cited: Civil Procedure Act 2005 NSW
Evidence Act 1995
Probate and Administration Act 1898 NSW
Succession Act 2006 NSW
Cases Cited: Bailey v Bailey (1924) 34 CLR 558
Boyce v Bunce [2015]NSWSC 1924
Bridgewater v Leahy [1998] HCA 66; 194 CLR 457
Carr v Homersham (2018) 97 NSWLR 328
Commissioner for Railways v Small (1938) 38 SR (NSW) 564; 55 WN 215
Estate Grundy; La Valette v Chambers-Grundy [2018] NSWSC 104
Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786
Estate Moran; Teasel v Hooke [2014] NSWSC 1839
Estate of Hodges, dec’d; Shorter v Hodges (1988) 14 NSWLR 698
Hatsatouris v Hatsatouris [2001] NSWCA 408
In the Estate of Fuld, deceased; Hartley v Fuld (Attorney General intervening) [1965] P405
In the Goods of William Loveday [1900] P 154
Osborne v Smith (1960) 105 CLR 153
Photios v Photios [2019] NSWCA 158
Re Estate Grundy (No. 2) [2018] NSWSC 1495
Re Estate of Wai Fun Chan, deceased [2015] NSWSC 1107
Re Estate of Moss, deceased; Larke v Nugus [2000] WTLR 1033
Re Estate Pierobon, deceased [2014] NSWSC 387
Tobin v Ezekiel (2012) 83 NSWLR 757
Trustee for the Salvation Army (NSW) Property Trust v Becker [2007] NSWCA 136; (2007) 14 BPR [98369]
Waind v Hill & National Employers Mutual Association Ltd [1978] 1 NSWLR 372
Zorbas v Sidiropoulous (No. 2) [2009] NSWCA 197
Texts Cited: GC Lindsay, The Handbook (Law Book Co., 2005)
Category: Procedural and other rulings
Parties:
Re Estate of Brooker-Pain
Plaintiff: Lorraine Kershaw
Defendant: Janet Bennett
Re Estate of Soulos
First Plaintiff: Con Kristallis
Second Plaintiff: Trevor Ian Cork
Third Plaintiff: Nicholas Andrew Soulos
Defendant: James Soulos
Representation:
Re Estate of Brooker-Pain
Counsel:
Plaintiff: RD Wilson SC
Defendant: H Pintos-Lopez

Solicitors:
Plaintiff: L Rundle & Co.
Defendant: Clarke Kann

Re Estate of Soulos
Counsel:
Plaintiffs: MK Meek SC and NCT Bilinsky
Defendant: L Ellison SC
Solicitors:
Plaintiffs: McPhee Kelshaw Solicitors
Defendant: Carroll & O’Dea Lawyers

File Number(s): Re Estate of Brooker-Pain: 2018/00310910, Re Estate of Soulos: 2018/00050908

Judgment

INTRODUCTION

The Nature of these Proceedings

Before the Court are two separate sets of proceedings which invoke the probate jurisdiction of the Court and which, in common,…

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.

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Details

Case: [2019] NSWSC 671
Decision Date: 28 June 2019

CaseChat Overview and Summary

The case of Re Estates Brooker-Pain and Soulos involved the estate of two deceased individuals, Brooker-Pain and Soulos, with disputes arising from their wills. The court was tasked with addressing the legal principles surrounding the compulsory production of documents in probate proceedings, particularly before pleadings and the service of evidence. This involved an examination of the overriding purpose of court administration, which seeks a just, quick, and cheap resolution of disputes.

The court had to decide whether it should compel the production of documents before the hearing, in line with the practice note SC Eq 11, which pertains to notices to produce and subpoenas in probate proceedings. The central issue was whether the traditional approach to document production in probate cases should be reconsidered in light of the overriding purpose of the court administration, and if so, what the implications would be for the practice of producing documents before pleadings and the service of evidence.

The court concluded that the traditional approach to compulsory production of documents should be reconsidered. It found that the overriding purpose of court administration necessitates a more flexible approach to document production in probate cases. The court held that it should not compel the production of documents before pleadings and the service of evidence unless there are exceptional circumstances that justify such an approach. This decision aligns with the aim of achieving a just, quick, and cheap resolution of disputes, allowing for a more streamlined and efficient process.

The court's decision resulted in a significant change to the practice in probate proceedings, emphasising a more flexible approach to document production. The final orders reflected this new approach, providing guidance for future cases involving the compulsory production of documents in probate proceedings.

Orders