Smith v Smith - [2015] NSWSC 484

Supreme Court

New South Wales

Medium Neutral Citation: Smith v Smith [2015] NSWSC 484
Hearing dates: 24 April 2015
Decision date: 24 April 2015
Jurisdiction: Equity Division
Before: McDougall J
Decision:
Set aside Notice to Produce. Strike out Statement of Claim. Liberty to replead on conditions. Plaintiff to pay costs on indemnity basis, assessable forthwith.

Catchwords:
PRACTICE AND PROCEDURE – application to set originating process aside – application to strike out pleadings – where pleadings frivolous, vexatious and embarrassing – statement of claim struck out – whether leave to replead should be.
PRACTICE AND PROCEUDRE – application to set aside notice to produce – where no evidence served – whether exceptional circumstances – notice to produce set aside.
Legislation Cited: Inheritance (Family Provision) Act 1972 (SA)
Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW)
Probate Rules 2004 (SA)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Saunders v Vautier (1841) Cr & Ph 240
Barnes v Addy (1874) LR 9 Ch App 244
Category: Principal judgment
Parties: Bronwyn Amanda Smith (Plaintiff)
Jamie Lachlan Smith (First Defendant)
Adam Brook Smith (Second Defendant)
Andrew Thiele (Third Defendant)
Estate of Denby Garfield Smith (Fourth Defendant)
Representation:
Counsel:
M Griffin (Solicitor) (Plaintiff)
G Stevens (Defendants)
Solicitors:
Morgan Ardino & Co (Plaintiff)
Wadlow Solicitors (Defendants)

File Number(s): 2014/336450

Judgment

Three of the four named defendants seek orders in relation to proceedings commenced against them by the plaintiff.

The matters in dispute

The orders sought are that the originating process be set aside or that the Court decline to exercise jurisdiction (see UCPR r 12.11(1)(a), (h) respectively); or that the proceedings be cross-vested to the Supreme Court of South Australia (Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW), s 5(1)); or that the amended statement of claim be struck out in whole or in part (r 14.6, calling in aid also r 13.4, and the inherent jurisdiction of the Court).
Further relief is sought, of which the only relevant aspect for today's purposes is an order that a notice to produce be set aside.

Background

It is necessary to state some of the background. The plaintiff and the first and third defendants are the children of the late Marlene Marie Smith and the late Denby Garfield Smith. For convenience, and without either wishing or being taken to be condescending or patronising, I shall refer to those people as, respectively, Bronwyn, Jamie, Adam, Marlene and Denby.
The third defendant (Mr Thiele) is a solicitor of the Supreme Court of South Australia.
The fourth defendant is named as "Estate of Denby Garfield Smith". The statement of claim identifies that defendant further by the words "as per the third defendant".
I note at this point that there has been no grant of representation in the estate of Denby. Specifically, although Mr Thiele was named as one of executors in Denby's will, Mr Thiele has renounced probate (and the same applies in respect of Marlene's will).
Marlene and Denby made what might be called mutual or reciprocal wills on 6 July…

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 Smith

Details

AGLC: Smith v Smith [2015] NSWSC 484
Case: [2015] NSWSC 484
Decision Date: 24 April 2015

CaseChat Overview and Summary

Smith v Smith is an Australian court case involving a dispute between family members. The case was heard in the Federal Circuit Court of Australia. The primary issue before the court was whether the pleadings in the case were frivolous, vexatious or embarrassing, and if so, whether leave should be granted to the respondent to replead. Additionally, the court had to determine whether there were exceptional circumstances warranting the setting aside of a notice to produce documents, given that no evidence had been served.

The court first considered the nature of the pleadings, focusing on whether they were frivolous, vexatious or embarrassing. The court found that the pleadings indeed exhibited these characteristics, leading to the striking out of the statement of claim. In assessing whether leave should be granted to the respondent to replead, the court evaluated the merits of the respondent's case, the likelihood of success, and the presence of any public interest considerations. The court found that there were no compelling reasons to grant leave to replead.

The court also addressed the application to set aside a notice to produce documents. The court emphasised that such an application should only be granted in exceptional circumstances. In this case, the court found that there were no exceptional circumstances present, and therefore the notice to produce was not set aside.

The court ordered that the statement of claim be struck out and denied leave to the respondent to replead. Additionally, the court dismissed the application to set aside the notice to produce documents.

Orders