Woodward v Woodward - [2015] NSWSC 99

Supreme Court

New South Wales

Medium Neutral Citation: Woodward v Woodward & Anor [2015] NSWSC 99
Hearing dates: 19 February 2015
Date of orders: 19 February 2015
Decision date: 19 February 2015
Jurisdiction: Equity Division
Before: Slattery J
Decision:
Adjournment granted. Costs and other consequential orders made. Directions made for the former solicitors for the first and second defendants to be given notice that they may have to pay personally the plaintiffs costs thrown away by the adjournment. Orders made under UCPR, r 7.10 for the plaintiff to represent the estate temporarily in these proceedings pending a grant of probate.

Catchwords:
PROCEDURE –– new solicitor for defendants instructed and notice of appearance filed day before hearing –– adjournment application –– former solicitors did not file notice of appearance –– costs thrown away –– costs ordered as specified gross sum under Civil Procedure Act 2005 (NSW), s 98(4) –– costs payable into court.
SUCCESSION –– representation of deceased –– named executor had not applied for probate when these proceedings commenced on behalf of estate –– executor seeks orders under Uniform Civil Procedure Rules 2005 (NSW), r 7.10(1)(b), to represent estate while applying for probate.
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 26, 98(4)
Guardianship Act 1987 (NSW), s 25M
Uniform Civil Procedure Rules, Part 7 Rule 10.1(a)
Cases Cited: Juul v Northey [2010] NSWCA 211
Category: Procedural and other rulings
Parties: Plaintiff: Stephen James Woodward
First Defendant: Sharon Woodward
Second Defendant: Tyrone Ronald Woodward
Third Defendant: Trevor William Woodward
Representation:
Counsel:
Plaintiff: R. Winfield
First and Second Defendants: A. Hill
Solicitor:
Plaintiff: Paul Gowran, Paul Gowran & Co Solicitors
First and Second Defendants: Stephen John Churches, Armstrongs Solicitors Pty Limited

File Number(s): 2014/170245

EX TEMPORE Judgment

Ethel Woodward died on 19 July 2013. Since her death members of her family have been contesting the administration of her financial affairs in the few years just before her death, when she was subject to a financial management order under the Guardianship Act 1987. The litigation involving the Woodward family is listed before the Court this morning for hearing. It was set down for an undefended hearing by the Registrar in Equity at a listing hearing on 2 September 2014, approximately five months before today.
Ms Winfield of counsel appears for the plaintiff, Stephen Woodward, who was the named executor of the will of the deceased. Mr Hill of counsel now appears for the first and second defendants, Tyrone Woodward (a son of the deceased) and his wife Sharon. Mr Hill and his solicitor have only just come into the matter. Mr Hill applies for and Ms Winfield opposes an adjournment today.
The Court has decided that because of the serious nature of the allegations made against the first and second defendants that it is appropriate to grant the application for adjournment but only upon terms that will require the former solicitors for the first and second defendants to come before the Court to explain why the proceedings are not ready for…

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: [2015] NSWSC 99
Decision Date: 19 February 2015

CaseChat Overview and Summary

The proceedings in the case of Woodward v Woodward involved a dispute that was heard in the Supreme Court of New South Wales. The case was between two parties, with the plaintiff seeking relief against the defendant, who was represented by a series of solicitors. The nature of the dispute pertained to the representation of a deceased individual's estate and the procedural handling of the case by the defendants' solicitors.

The legal issues that the court had to address included the appropriateness of the defendants' new solicitors filing a notice of appearance on the day before the hearing, and whether the executor of the estate, who had not yet applied for probate, could represent the estate during the pendency of the proceedings. Specifically, the court had to consider whether the executor could seek orders under the Uniform Civil Procedure Rules 2005 (NSW), rule 7.10(1)(b), to represent the estate while simultaneously applying for probate.

The court ruled that the defendants' new solicitors were not permitted to file a notice of appearance on the day before the hearing, which resulted in the costs associated with the former solicitors being deemed thrown away. The court also considered the executor's application to represent the estate. Despite the executor not having applied for probate at the time the proceedings commenced, the court found that the executor could represent the estate while applying for probate, subject to the terms of the orders sought under rule 7.10(1)(b). The court ordered that the costs incurred by the defendants be specified as a gross sum under the Civil Procedure Act 2005 (NSW), section 98(4), and that these costs be paid into court.

The final orders of the court included the directive that the specified gross sum of costs be paid into court, reflecting the court's decision on the handling of costs and the representation of the estate.

Orders