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Snow v Snow

Snow v Snow

Case [2015] NSWSC 90 20 February 2015

Family Provision Order

Limitation Periods

Summary Judgment

Family Law

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Supreme Court

New South Wales

Medium Neutral Citation: Snow v Snow [2015] NSWSC 90
Hearing dates: 9 February 2015
Decision date: 20 February 2015
Jurisdiction: Equity Division
Before: Hallen J
Decision:
(a)Orders that the proceedings be dismissed.
(b)Orders that the Defendant’s costs, calculated on the indemnity basis, of the proceedings, including of the notice of motion filed 7 November 2014, be paid or retained as the case may be, out of the estate of the deceased.
Catchwords: PROCEDURE – Claim for family provision order – Proceedings out of time – Procedure under rules of Court – Summary Disposal – Want of due despatch – No steps taken by Plaintiff following Notice of Ceasing to Act filed by his solicitors – Plaintiff unable to be located despite numerous searches – Estate likely to be insolvent or near insolvent after payment of debts funeral and testamentary expenses – Uniform Civil Procedure Rules 2005 (NSW), rule 12.7(1) – Judgment and orders
Legislation Cited: Civil Procedure Act 2005 (NSW)
Practice Note SC Eq. 7
Succession Act 2006 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: French Consulting Pty Limited v Donald [2011] NSWSC 584
Jackson v Newns [2011] VSC 32
Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274
Category: Procedural and other rulings
Parties: William Kim Snow (Plaintiff)
Nicola Marion Snow (Defendant)
Representation: Solicitors:
No appearance (Plaintiff)
Herring & Associates - Lawyers (Defendant)

File Number(s): 2014/193428

JUDGMENT

HIS HONOUR: I am dealing with a notice of motion filed on 7 November 2014, by the Defendant, in which she seeks an order, pursuant to the Uniform Civil Procedure Rules 2005 (NSW), rule 12.7, that the Plaintiff’s proceedings be dismissed for his failure to prosecute those proceedings with due despatch.
The proceedings brought by the Plaintiff were commenced by Summons filed on 30 June 2014, in which he sought an order extending the time for making a claim for a family provision order, a family provision order out of the estate or notional estate of his mother, Marion Joyce Snow (“the deceased”), under the Succession Act 2006 (NSW), and an order for costs.
It is necessary to set out some background facts to give context to the notice of motion.
The deceased died on 15 April 2013, aged 89 years, having been born in September 1924. She left a Will, Probate of which was granted to her daughter, the Defendant, on 10 July 2013. She left the whole of her estate to the Defendant. Her estate, at the date of death, comprised, effectively, a property at Gundaroo, with an estimated value of $370,000.
The deceased’s estate, currently, for reasons to which I shall come, has no, or little, net value, although the gross value of the property at Gundaroo may be higher than previously disclosed.
The first return date of the Plaintiff’s Summons was 25 July 2014. By that date, the Plaintiff had filed the documents required by Paragraph 6 of Practice Note SC Eq. 7. At the request of counsel who appeared…

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 Snow v Snow

Details

AGLC: Snow v Snow [2015] NSWSC 90
Case: [2015] NSWSC 90
Decision Date: 20 February 2015

CaseChat Overview and Summary

The case of Snow v Snow involved a claim for a family provision order by the plaintiff against the estate of the deceased, the defendant. The plaintiff sought additional provision from the estate beyond what had been provided under the deceased's will. The dispute reached the Supreme Court of New South Wales, which was required to determine whether the plaintiff's claim was made out of time and whether the proceedings could be summarily dismissed due to the plaintiff's lack of progress.

The court had to decide if the plaintiff's claim was barred by the provisions of the Uniform Civil Procedure Rules 2005 (NSW), particularly rule 12.7(1), which governs the dismissal of proceedings for want of due despatch. The court also needed to consider the circumstances surrounding the plaintiff's absence and the effect on the estate, including the likelihood of the estate becoming insolvent or near insolvent after the payment of debts, funeral expenses, and testamentary expenses.

The court found that the plaintiff had not taken any steps to progress the case after receiving a notice of ceasing to act from their solicitors. Despite extensive efforts, the plaintiff could not be located, and the estate was likely to be insolvent. Given these circumstances, the court exercised its discretion under rule 12.7(1) to dismiss the proceedings for want of due despatch. The plaintiff's failure to engage with the case, combined with the estate's precarious financial state, led the court to conclude that the proceedings should be summarily dismissed.

The court ordered that the plaintiff's claim be dismissed and that costs be awarded against the plaintiff. This decision underscores the importance of timely and active participation in legal proceedings and the court's power to manage cases efficiently, particularly where there is a risk of financial detriment to the estate.

Orders