Wong & Chow v Mack - [2023] QSC 269

SUPREME COURT OF QUEENSLAND

CITATION:

Wong & Chow v Mack [2023] QSC 269

PARTIES:

MERILYN WONG and JENNIFER CHOW

(applicants)

v
ALEXANDER ROGER KIN LIK MACK as executor of the will of TIMOTH TIM KEONG MACK (also known as TIMOTHY MACK)

(respondent)

FILE NO/S:

4430/23

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court

DELIVERED ON:

29 November 2023

DELIVERED AT:

Brisbane

HEARING DATE:

7 November 2023

JUDGE:

Freeburn J

ORDER:

1. The application filed on 2 November 2023 is dismissed.

2. I will hear the parties on costs.

CATCHWORDS:
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – JUDGMENTS AND ORDERS – AMENDING, VARYING AND SETTING ASIDE JUDGMENTS AND ORDERS – GENERAL PRINCIPLES – where orders were made to progress the proceedings which, inter alia, required the respondent to file and serve a statement of claim and an affidavit of scripts by 30 October 2023 – where the orders provided that if the respondent did not comply, the proceeding would be dismissed – where the respondent failed to comply with the orders by 30 October 2023 – where, three days later, a notice of change of solicitors was filed on the respondent’s behalf, alongside an application to vary the date for compliance with the order to 14 November 2023 – whether the court has a discretion to extend the time for compliance and, if so, whether such discretion should be so exercised

Uniform Civil Procedure Rules 1999

Bailey v Marinoff (1971) 125 CLR 529
Chavez v Moreton Bay Regional Council [2010] 2 Qd R 299
FAI General Insurance Company Limited v Southern Cross Exploration NL (1988) 165 CLR 268
Mango Boulevarde Pty Ltd v Spencer [2010] QCA 207
Mango Boulevard Pty Ltd v Spencer [2007] QSC 276

COUNSEL:

Mr M Foley (applicant/respondent)
Ms A Rae (respondents/applicants)

SOLICITORS:

Cranston McEachern for the applicant/respondent
Thynne & Macartney for the respondents/applicants

Timothy Tim Keong Mack died on 26 January 2023. He was 98 years of age. The death certificate states the causes of death as multilobar pneumonia and cognitive impairment.
The deceased had made a will some 13 months prior to his death – on 24 December 2021.
On 13 April 2023, the deceased’s grandson, Alexander Mack, made an application for probate. However, on 18 May 2023 Mr Alexander Mack’s application for a grant of probate was requisitioned by the court’s registrar. The requisition states:
“A cause of death namely Cognitive Impairment mentioned in the Death Certificate raises a question of testamentary capacity. The duration of this illness specified is not specified and raises the possibility the will may have been executed during this period.”
The registrar continued:
“Action required: - File a further affidavit by the applicant with the details as required by paragraph 4 of form 105 of the Uniform Civil Procedure Rules 1999. The affidavit need not repeat all the previous information only the information necessary to answer the requisition.”
The applicants, Ms Merilyn Wong and Ms Jennifer Chow, are the deceased’s daughters. They dispute the will…

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: [2023] QSC 269
Decision Date: 29 November 2023

CaseChat Overview and Summary

Wong and Chow, the plaintiffs, brought an action against Mack, the defendant, which was set down for mention before the court. The plaintiffs sought orders that Mack file and serve a statement of claim and an affidavit of scripts by 30 October 2023. If Mack did not comply with these orders, the proceedings were to be dismissed. Mack failed to comply with the orders, but three days after the due date, a notice of change of solicitors was filed on Mack’s behalf, alongside an application to vary the date for compliance with the order to 14 November 2023.

The court was required to determine whether it had the discretion to extend the time for compliance with the orders, and if so, whether the discretion should be exercised in this case. The court considered the general principles surrounding the extension of time in civil proceedings, the need for compliance with court orders, and the impact of the delay on the plaintiffs.

The court held that it did have the discretion to extend the time for compliance with the orders but found that the circumstances did not warrant the exercise of that discretion. The court noted that the delay in complying with the orders was not trivial and that the application to vary the date for compliance was made three days after the deadline had passed. The court emphasised the importance of adhering to court-imposed deadlines and found that the delay was significant enough to warrant dismissal of the proceedings. The court dismissed the application to vary the date for compliance and ordered that the proceedings would be dismissed.

The court will hear the parties on costs.

Orders

Orders of the court

1. The application filed on 2 November 2023 is dismissed.

2. I will hear the parties on costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Wong & Chow v Mack [2023] QSC 269
PARTIES:	MERILYN WONG and JENNIFER CHOW (applicants) v ALEXANDER ROGER KIN LIK MACK as executor of the will of TIMOTH TIM KEONG MACK (also known as TIMOTHY MACK) (respondent)
FILE NO/S:	4430/23
DIVISION:	Trial
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court
DELIVERED ON:	29 November 2023
DELIVERED AT:	Brisbane
HEARING DATE:	7 November 2023
JUDGE:	Freeburn J
ORDER:	1. The application filed on 2 November 2023 is dismissed. 2. I will hear the parties on costs.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – JUDGMENTS AND ORDERS – AMENDING, VARYING AND SETTING ASIDE JUDGMENTS AND ORDERS – GENERAL PRINCIPLES – where orders were made to progress the proceedings which, inter alia, required the respondent to file and serve a statement of claim and an affidavit of scripts by 30 October 2023 – where the orders provided that if the respondent did not comply, the proceeding would be dismissed – where the respondent failed to comply with the orders by 30 October 2023 – where, three days later, a notice of change of solicitors was filed on the respondent’s behalf, alongside an application to vary the date for compliance with the order to 14 November 2023 – whether the court has a discretion to extend the time for compliance and, if so, whether such discretion should be so exercised Uniform Civil Procedure Rules 1999 Bailey v Marinoff (1971) 125 CLR 529 Chavez v Moreton Bay Regional Council [2010] 2 Qd R 299 FAI General Insurance Company Limited v Southern Cross Exploration NL (1988) 165 CLR 268 Mango Boulevarde Pty Ltd v Spencer [2010] QCA 207 Mango Boulevard Pty Ltd v Spencer [2007] QSC 276
COUNSEL:	Mr M Foley (applicant/respondent) Ms A Rae (respondents/applicants)
SOLICITORS:	Cranston McEachern for the applicant/respondent Thynne & Macartney for the respondents/applicants