Byrne v Public Trustee [2002] NSWSC 177

Byrne v Public Trustee [2002] NSWSC 177

Because the plaintiff was totally blameless, the defaults were attributable wholly to his solicitor, the defendant identified no prejudice, the estate had not been fully administered, and the plaintiff had a reasonable claim for provision, no good purpose would be served by requiring the plaintiff to commence fresh out-of-time proceedings or sue his solicitor for professional negligence. The dismissal order was therefore set aside, late service was allowed, and the solicitor was ordered to pay the costs of the application.

Jurisdiction
Australia
Judgment Date
08 February 2002
Procedural Posture
Family Provision Proceedings Seeking Provision Out of the Estate of Alice Beryl Byrne / Plaintiff's Notice of Motion to Set Aside Dismissal of Proceedings and for Leave to Serve the Summons Outside the Three Months' Period
Outcome
Notice of motion granted; dismissal set aside; leave granted to serve the summons outside the three months' period; plaintiff's solicitor ordered to pay costs.
Legal Topics
['family Provision Claim' 'dismissal for Want of Prosecution or Inactivity' 'service of Summons Outside Prescribed Period' "setting Aside Registrar's Dismissal Order" 'solicitor Fault' 'indemnity Costs']
['succession' 'civil Procedure' 'costs'] ['family Provision Claim' 'dismissal for Want of Prosecution or Inactivity' 'service of Summons Outside Prescribed Period' "setting Aside Registrar's Dismissal Order" 'solicitor Fault' 'indemnity Costs']

Case Brief

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Procedural Posture

Family Provision Proceedings Seeking Provision Out of the Estate of Alice Beryl Byrne / Plaintiff's Notice of Motion to Set Aside Dismissal of Proceedings and for Leave to Serve the Summons Outside the Three Months' Period

Legal Issues

  1. 1 ['Whether the ex parte order dismissing the proceedings under Part 32A rule 2 of the Supreme Court Rules should be set aside' "Whether the plaintiff should be allowed to serve the summons outside the three months' period" "Whether costs of the notice of motion should be paid by the plaintiff's solicitor"]

Ratio Decidendi

Because the plaintiff was totally blameless, the defaults were attributable wholly to his solicitor, the defendant identified no prejudice, the estate had not been fully administered, and the plaintiff had a reasonable claim for provision, no good purpose would be served by requiring the plaintiff to commence fresh out-of-time proceedings or sue his solicitor for professional negligence. The dismissal order was therefore set aside, late service was allowed, and the solicitor was ordered to pay the costs of the application.

Court Disposition

Notice of motion granted; dismissal set aside; leave granted to serve the summons outside the three months' period; plaintiff's solicitor ordered to pay costs.

Orders

  • ['Orders as in paragraphs 1 and 2 in the notice of motion filed by the plaintiff on 11 December 2001.' 'The solicitor for the plaintiff is to pay the costs of both parties of and incidental to the notice of motion, the costs of the defendant to be on the indemnity basis.']