Taryn Maree Hammond v Annette Hammond - [2012] NSWSC 1326

Supreme Court

New South Wales

Medium Neutral Citation: Taryn Maree Hammond v Annette Hammond [2012] NSWSC 1326
Hearing dates: 12 October 2012
Decision date: 31 October 2012
Jurisdiction: Equity Division
Before: Associate Justice Macready
Decision:
1)Set aside the order of Registrar Musgrave on 23 July 2012.
2)Direct the solicitors to serve a copy of this judgment on their clients.
3)Parties to be heard on costs

Catchwords: PROCEDURE - judgment and orders - setting aside notice of motion - failure of service of notice - exercise of judicial discretion to set aside
Legislation Cited: Civil Procedure Act 2005
Uniform Civil Procedure Rules 2005
Cases Cited: Cameron v Cole (1944) 68 CLR 571
Hoskins v Van Den-Braak (1998) 43 NSWLR 290
Johnson Tiles Pty Ltd v Esso Australia Ltd [1999] FCA 1363; (1999) 94 FCR 167
Parker v Parker [2006] NSWSC 473
Sherborne Estate (No 2); Vanvalen v Neaves [2005] NSWSC 1003; (2005) 65 NSWLR 268
Woolf v Snipe [1933] HCA 5; (1933) 48 CLR 677
Category: Interlocutory applications
Parties: First Plaintiff:
Taryn Maree Hammond by her tutor Cathie Leanne Hammond
Second Plaintiff:
Jake Matthew Hammond by his tutor Cathie Leanne Hammond
Defendant:
Annette Hammond
Representation: Counsel:
Solicitors:
Plaintiff: Armando Gardiman, Turner Freeman
Defendant: Michael Donovan, Business Lawyers

File Number(s): 2010/90383

Judgment

This is the hearing of an amended Notice of Motion filed on 12 October 2012 in which the plaintiffs seek leave to extend time and review a decision of Registrar Musgrave of 23 July 2012 when the learned Registrar dismissed the plaintiffs' proceedings. An alternative claim is made pursuant to the Uniform Civil Procedure Rules 36.16 to set aside the orders made by the Registrar on 23 July 2012.

The proceedings are an application by two children of the deceased under the Succession Act 2006 for provision out of his estate.

Although I will return to the history a little later, the immediate facts leading to the dismissal of proceedings seem to be as follows. There was a directions hearing on 15 February 2012 when the matter was stood over to 2 July 2012. On 10 April 2012 the defendant's solicitors served a notice of intention to cease to act and then on 15 May 2012 actually served the notice of ceasing to act. On 2 July 2012 there was a directions hearing and there was no appearance by the plaintiffs. This was because, as the solicitors acting for the plaintiffs admit, the solicitor having carriage of the matter did not make a diary note of the adjourned date and did not attend. The Registrar on 2 July 2012 stood the matter over to 23 July 2012. A notice was issued by the Court on 2 July 2012 to the plaintiffs giving notice that the Court may dismiss the proceedings under UCPR 13.6. The notice was addressed to Armando John Gardiman, Solicitors St James Centre, Level 16, 111 Elizabeth Street, Sydney. The solicitors were Turner Freeman and Mr Gardiman was the solicitor on the record. There is…

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: [2012] NSWSC 1326
Decision Date: 31 October 2012

CaseChat Overview and Summary

In the matter of Taryn Maree Hammond versus Annette Hammond, the dispute centred on the validity of proceedings initiated by Taryn against Annette. The case was heard in the Family Court of Australia. Taryn sought to have certain orders set aside, which Annette had previously obtained against her, on the basis that the service of the original notice of motion was defective. The crux of the matter lay in whether the court should exercise its discretion to set aside the notice of motion due to the alleged failure in service.

The court was tasked with determining whether the notice of motion had indeed been served in accordance with the rules and, if not, whether setting aside the motion was warranted under the circumstances. The legal issue was whether the Family Court had the discretion to set aside the notice of motion due to the failure of service, and if so, whether the court should exercise that discretion in this particular case. This involved an examination of the procedural rules governing service of documents and the discretion available to the court in such instances.

The court examined the circumstances surrounding the service of the notice of motion and concluded that there was a genuine failure in the service process. Given this finding, the court turned to the question of whether to exercise its discretion to set aside the notice of motion. The court considered factors such as the timeliness of the application to set aside, the degree to which the respondent had been prejudiced, and the likelihood that the applicant would succeed on the merits if the motion were to proceed. Ultimately, the court found that the exercise of its discretion was appropriate in the circumstances of this case. Consequently, the court set aside the notice of motion, allowing Taryn to challenge the orders obtained by Annette on the basis of the defective service.

Orders