Woodward v Woodward & Anor [2015] NSWSC 99

Woodward v Woodward & Anor [2015] NSWSC 99

Because the allegations of wilful default against the first and second defendants were serious, fairness required that they be given an opportunity to defend the proceedings with proper representation, so the hearing was adjourned. The adjournment was granted only on terms protecting the plaintiff through costs orders and payment of $10,000 into court or trust, and by requiring former solicitors to be notified to show cause why they should not personally bear some or all of the costs thrown away. The plaintiff was also temporarily appointed to represent the estate because he had not yet obtained probate but needed to regularise the estate's representation promptly.

Jurisdiction
Australia
Judgment Date
19 February 2015
Procedural Posture
Equity Proceedings Concerning Administration of a Deceased Estate and Alleged Wilful Default by a Financial Manager / Adjournment Application and Procedural Directions at Listed Hearing
Outcome
Adjournment granted; procedural, costs, estate representation, document production and mediation orders made.
Legal Topics
['adjournment' 'costs Thrown Away' 'personal Costs Against Solicitors' 'representation of Deceased Estate Pending Probate' 'financial Management Under Guardianship Legislation' 'court Annexed Mediation']
['civil Procedure' 'succession' 'equity' 'costs'] ['adjournment' 'costs Thrown Away' 'personal Costs Against Solicitors' 'representation of Deceased Estate Pending Probate' 'financial Management Under Guardianship Legislation' 'court Annexed Mediation']

Case Brief

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Procedural Posture

Equity Proceedings Concerning Administration of a Deceased Estate and Alleged Wilful Default by a Financial Manager / Adjournment Application and Procedural Directions at Listed Hearing

Legal Issues

  1. 1 ['Whether the hearing should be adjourned after new solicitors and counsel for the first and second defendants appeared the day before the hearing.' 'Whether costs thrown away by the adjournment should be paid, secured, or potentially borne personally by former solicitors.' 'Whether the plaintiff could temporarily represent the deceased estate in the proceedings pending a grant of probate.' 'What directions should be made to place the proceedings on a proper footing, including defence, evidence, production and mediation.']

Ratio Decidendi

Because the allegations of wilful default against the first and second defendants were serious, fairness required that they be given an opportunity to defend the proceedings with proper representation, so the hearing was adjourned. The adjournment was granted only on terms protecting the plaintiff through costs orders and payment of $10,000 into court or trust, and by requiring former solicitors to be notified to show cause why they should not personally bear some or all of the costs thrown away. The plaintiff was also temporarily appointed to represent the estate because he had not yet obtained probate but needed to regularise the estate's representation promptly.

Court Disposition

Adjournment granted; procedural, costs, estate representation, document production and mediation orders made.

Orders

  • ['Appoint the plaintiff Stephen James Woodward under Uniform Civil Procedure Rules, r 7.10(1)(b) to represent the estate of the late Ethel Marie Woodward, who died on 19 July 2013, in these proceedings.' "Direct the plaintiff to file an application for probate of the deceased's estate by 4pm on Thursday, 26 February...