Smith v Magi - [2011] NSWSC 198

Supreme Court

New South Wales

Medium Neutral Citation: Smith v Magi [2011] NSWSC 198
Hearing dates: 23 March 2011
Decision date: 25 March 2011
Before: Davies J
Decision:
(1) The applications contained in paragraphs 2 and 3 of the Defendant's Amended Notice of Motion filed 23 March 2011 are refused. (2) The Plaintiff is not permitted to rely on the report of Dr Guthridge of 8 April 2009. (3) Leave to the Plaintiff to serve a further report of Dr Guthridge in accordance with my reasons by 5pm 30 March 2011. (4) Reserve the costs of the Notice of Motion to be dealt with at the trial.

Catchwords: PROCEDURE - expert evidence - leave to serve expert report - testamentary capacity case - small estate - late application by Defendant - principle of proportionality - application refused.
Legislation Cited: Civil Procedure Act 2005
Evidence Act 1995
Uniform Civil Procedure Rules
Cases Cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Fletcher v Besser [2010] NSWCA 30
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Nominal Defendant v Manning (2000) 50 NSWLR 139
Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2009] NSWSC 49
Category: Interlocutory applications
Parties: Jodie Smith (Plaintiff)
Susan Gay Magi (Defendant
Representation: Counsel:
M Meek SC (Plaintiff)
JJ Loofs (Defendant)
Solicitors:
Carroll & O'Dea (Plaintiff)
Hartnett Lawyers (Defendant)

File Number(s): 2010/9015

Judgment

These proceedings concern a dispute about the testamentary capacity of the deceased Arthur Rice when he executed a will on 16 November 2007.

Under that will he appointed his daughter Susan Magi as executrix. He gave half his estate to his great grand-children Brendan Kajic and Justin Kajic as tenants in common, a quarter of his estate to their mother (his granddaughter) Jodie Kajic (now Jodie Smith) and a quarter of his estate to his daughter (Jodie's mother) Susan Magi.

The Plaintiff in the proceedings is Jodie Smith who was the substitute executrix in the will of the deceased made 7 September 1999. Under that will he left $10,000 and his watch to Brendan Kajic, $10,000 and a cabinet to Justin Kajic, $5,000 to each of his daughters Marilyn Dowd and Susan Rice (now Susan Magi) and the residue of the estate to Jodie.

The present proceedings came before Palmer J as Probate Judge on 6 December 2010 when the Defendant asked for leave pursuant to r 21.19 UCPR to adduce the evidence of Dr John Obeid, consultant physician and geriatrician. At the time leave was sought the Defendant had obtained the report of Dr Obeid dated 22 November 2010.

At the hearing before Palmer J Senior Counsel for the Plaintiff drew the Judge's attention to the costs incurred to that point by the legal representatives acting for the Defendant.

The Plaintiff had, by that time, served 2 affidavits of doctors who had assessed the deceased before his death. The first such affidavit was from Dr Jacinta Guthridge sworn 19 May 2010. Dr Guthridge annexed 2…

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 Smith v Magi

Details

AGLC: Smith v Magi [2011] NSWSC 198
Case: [2011] NSWSC 198
Decision Date: 25 March 2011

CaseChat Overview and Summary

In the matter of Smith v Magi, the court was presented with an issue regarding the admissibility of expert evidence in a testamentary capacity case. The estate involved was modest, and the defendant, Magi, sought leave to serve an expert report late in the proceedings. The matter was heard in the Supreme Court of Victoria. The legal issues at hand were whether the defendant's application for leave to serve an expert report out of time was appropriate and whether the principle of proportionality should be applied in this context.

The court considered the factors relevant to granting leave for late service of an expert report, including the nature of the estate, the timing of the application, and the reasons provided by the defendant. The court emphasised that the principle of proportionality should be applied, which requires a balance between the interests of the parties and the overarching objective of ensuring just resolution of the dispute. The court found that the defendant's application was made too late and that the small size of the estate did not warrant an exception to the usual rules regarding expert evidence. Consequently, the application was refused.

The court's decision was grounded in the need to maintain the integrity of the legal process and to prevent unnecessary delay and expense. It highlighted that the principle of proportionality must be carefully considered, particularly in cases involving small estates. The court also noted that the defendant's reasons for the late application were insufficient to warrant an exception to the usual rules. The final orders of the court were that Magi's application for leave to serve an expert report out of time was dismissed, and no costs were awarded.

Orders