Smith Estate: Smith v Smith & Ors [2005] NSWSC 1340

Smith Estate: Smith v Smith & Ors [2005] NSWSC 1340

The plaintiff's case against the fourth and fifth defendants is not 'manifestly groundless' or 'hopeless' and raises disputed questions of fact and credibility unsuitable for summary determination. However, as the resolution of claims against other defendants will determine whether the plaintiff has any claim at all against the fourth and fifth defendants, the proceedings against them are appropriately stayed until those issues are resolved.

Parties
Plaintiff: Glendon Brian Smith; First Defendant: Lindin Warrin Smith; Second Defendant: Alwyn Frederick Kelehear; Third Defendant: Linden Russell Smith; Fourth Defendant: Susan Louise Cowley; Fifth Defendant: Frederick Neville Cowley
Jurisdiction
Australia
Judgment Date
16 December 2005
Procedural Posture
Probate / Summary Judgment Application; Interlocutory Orders
Outcome
Temporary stay of proceedings as against the Fourth and Fifth Defendants ordered; costs of the application made costs in the cause.
Legal Topics
Summary Judgment, Fraud, Testamentary Capacity, Voluntary Conveyance, Bona Fide Purchaser, Delay, Change of Position
Equity Probate Summary Judgment Fraud Testamentary Capacity Voluntary Conveyance Bona Fide Purchaser Delay +1 more

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Parties

Glendon Brian Smith

Plaintiff

Lindin Warrin Smith

First Defendant

Alwyn Frederick Kelehear

Second Defendant

Linden Russell Smith

Third Defendant

Susan Louise Cowley

Fourth Defendant

Frederick Neville Cowley

Fifth Defendant

Procedural Posture

Probate / Summary Judgment Application; Interlocutory Orders

Legal Issues

  1. 1 Whether summary judgment should be entered against the plaintiff in claims to set aside probate for fraud
  2. 2 Whether the test for summary judgment differs in claims challenging judgments for fraud
  3. 3 Whether plaintiff's claims regarding testamentary capacity or alleged voluntary conveyance are hopeless

Ratio Decidendi

The plaintiff's case against the fourth and fifth defendants is not 'manifestly groundless' or 'hopeless' and raises disputed questions of fact and credibility unsuitable for summary determination. However, as the resolution of claims against other defendants will determine whether the plaintiff has any claim at all against the fourth and fifth defendants, the proceedings against them are appropriately stayed until those issues are resolved.

Court Disposition

Temporary stay of proceedings as against the Fourth and Fifth Defendants ordered; costs of the application made costs in the cause.

Orders

  • Proceedings as against the Fourth and Fifth Defendants stayed until determination of the claims by the Plaintiff against the First, Second and Third Defendants or until other order of the Court.
  • Costs of the application are costs in the cause.