Budniak v NSW Trustee and Guardian [2019] NSWSC 237

Budniak v NSW Trustee and Guardian [2019] NSWSC 237

A professional negligence claim arising from preparation of a will was not a claim for damages arising out of death or bodily injury within UCPR r 22.1(3)(a), so the applicable test was necessity under r 22.1(4). The interrogatories ultimately pressed were necessary because the defendant positively pleaded that it was satisfied as to the deceased's testamentary capacity and knowledge and approval of the 2007 will, and the plaintiffs needed admissible evidence about what the defendant and its employees did; the prior probate findings could not be relied upon because of s 91 of the Evidence Act 1995 (NSW), and the affidavits from those proceedings were not presently admissible without leave.

Jurisdiction
Australia
Judgment Date
01 March 2019
Procedural Posture
Notice of Motion in Civil Proceedings Seeking Verified Answers to Interrogatories Under Uniform Civil Procedure Rules 2005 (nsw) R 22.1 / Motion Determined
Outcome
Motion granted; defendant ordered to provide verified answers to the amended interrogatories and pay the plaintiffs' costs of the motion.
Legal Topics
['interrogatories' 'necessity Under UCPR R 22.1(4)' 'special Reasons Under UCPR R 22.1(3)' 'testamentary Capacity' 'will Drafting' 'admissibility of Findings From Earlier Proceedings']
['civil Procedure' 'professional Negligence' 'succession'] ['interrogatories' 'necessity Under UCPR R 22.1(4)' 'special Reasons Under UCPR R 22.1(3)' 'testamentary Capacity' 'will Drafting' 'admissibility of Findings From Earlier Proceedings']

Case Brief

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Procedural Posture

Notice of Motion in Civil Proceedings Seeking Verified Answers to Interrogatories Under Uniform Civil Procedure Rules 2005 (nsw) R 22.1 / Motion Determined

Legal Issues

  1. 1 ['Whether the proceedings were on a claim for damages arising out of the death of, or bodily injury to, a person within UCPR r 22.1(3)(a), requiring special reasons for interrogatories.' 'Whether the proposed interrogatories were necessary at the time they were ordered under UCPR r 22.1(4).' 'Whether the interrogatories were improper because their purpose included preparation of an expert report or because information was available from earlier probate proceedings.' 'Whether objections to individual interrogatories based on form, necessity, oppression or alternative procedures should be upheld.']

Ratio Decidendi

A professional negligence claim arising from preparation of a will was not a claim for damages arising out of death or bodily injury within UCPR r 22.1(3)(a), so the applicable test was necessity under r 22.1(4). The interrogatories ultimately pressed were necessary because the defendant positively pleaded that it was satisfied as to the deceased's testamentary capacity and knowledge and approval of the 2007 will, and the plaintiffs needed admissible evidence about what the defendant and its employees did; the prior probate findings could not be relied upon because of s 91 of the Evidence Act 1995 (NSW), and the affidavits from those proceedings were not presently admissible without leave.

Court Disposition

Motion granted; defendant ordered to provide verified answers to the amended interrogatories and pay the plaintiffs' costs of the motion.

Orders

  • ["Pursuant to UCPR 22.1 the defendant is to provide verified answers by 15 April 2019 to the interrogatories set out in annexure A of the plaintiff's notice of motion as amended." "The defendant is to pay the plaintiff's costs of the motion." 'The matter is listed for directions before the Common Law Registrar on...