Taryn Maree Hammond v Annette Hammond [2012] NSWSC 1326

Taryn Maree Hammond v Annette Hammond [2012] NSWSC 1326

The Court set aside Registrar Musgrave's order because the plaintiffs did not receive proper notice of the hearing at which their proceedings were dismissed. Although the plaintiffs' solicitors had failed to file a notice of change of address, the Court's notice omitted the words "Turner Freeman" from the address for service shown on the record, so the notice was not posted to the correct address and there was no proper notice of the hearing. The common law right to set aside a determination ex debito justitiae for denial of natural justice operated outside the additional powers in the Rules. Alternatively, the failure to serve was an irregularity satisfying UCPR 36.15 for setting aside...

Jurisdiction
Australia
Judgment Date
31 October 2012
Procedural Posture
Interlocutory Applications; Application by Two Children of the Deceased Under the Succession Act 2006 for Provision Out of His Estate / Hearing of an Amended Notice of Motion Filed on 12 October 2012 Seeking Leave to Extend Time and Review, or Alternatively Set Aside, Registrar Musgrave's Order of 23 July 2012 Dismissing the Plaintiffs' Proceedings
Outcome
Registrar Musgrave's order of 23 July 2012 dismissing the plaintiffs' proceedings was set aside; parties were to be heard on costs.
Legal Topics
['setting Aside Judgment or Order' 'failure of Service of Notice' 'natural Justice' 'ex Debito Justitiae' 'irregular Judgment' 'family Provision Proceedings' 'costs Capping']
['civil Procedure' 'equity' 'succession' 'costs'] ['setting Aside Judgment or Order' 'failure of Service of Notice' 'natural Justice' 'ex Debito Justitiae' 'irregular Judgment' 'family Provision Proceedings' 'costs Capping']

Case Brief

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Procedural Posture

Interlocutory Applications; Application by Two Children of the Deceased Under the Succession Act 2006 for Provision Out of His Estate / Hearing of an Amended Notice of Motion Filed on 12 October 2012 Seeking Leave to Extend Time and Review, or Alternatively Set Aside, Registrar Musgrave's Order of 23 July 2012 Dismissing the Plaintiffs' Proceedings

Legal Issues

  1. 1 ["Whether the plaintiffs were entitled to have the Registrar's dismissal order set aside ex debito justitiae because they were not properly notified of the hearing." 'Whether the order could alternatively be set aside under the Uniform Civil Procedure Rules 2005, including UCPR 36.16 or UCPR 36.15, despite the motion being filed outside 14 days.' 'Whether the failure to serve the notice properly constituted an irregularity sufficient to set aside the order after entry.' 'Whether costs consequences or costs capping should be considered in light of the small estate and the conduct of the proceedings.']

Ratio Decidendi

The Court set aside Registrar Musgrave's order because the plaintiffs did not receive proper notice of the hearing at which their proceedings were dismissed. Although the plaintiffs' solicitors had failed to file a notice of change of address, the Court's notice omitted the words "Turner Freeman" from the address for service shown on the record, so the notice was not posted to the correct address and there was no proper notice of the hearing. The common law right to set aside a determination ex debito justitiae for denial of natural justice operated outside the additional powers in the Rules. Alternatively, the failure to serve was an irregularity satisfying UCPR 36.15 for setting aside...

Court Disposition

Registrar Musgrave's order of 23 July 2012 dismissing the plaintiffs' proceedings was set aside; parties were to be heard on costs.

Orders

  • ['Set aside the order of Registrar Musgrave on 23 July 2012.' 'Direct the solicitors to serve a copy of this judgment on their clients.' 'Parties to be heard on costs.']