Hulme v Hulme [2023] NSWSC 299

Supreme Court New South Wales

Medium Neutral Citation: Hulme v Hulme [2023] NSWSC 299 Hearing dates: 28 February 2023 Date of orders: 30 March 2023 Decision date: 30 March 2023 Jurisdiction: Equity Before: Hallen J Decision: The Court: 1. Orders that the Will dated 13 June 2017 of Robert Shallcross Hulme ("the deceased") be admitted to probate. 2. Orders subject to compliance with the Probate rules of Court that probate in solemn form of the Will dated 13 June 2017 of the deceased be granted to the Plaintiffs, Mark Shallcross Hulme and Suzette Rosila Hulme, the instituted executors named in the deceased's Will. 3. Orders that the matter be remitted to the Senior Deputy Registrar in Probate to complete the grant. 4. Orders that the Defendant pay the costs, calculated on the indemnity basis, of the proceeding, from 31 January 2023; otherwise, he should pay their costs, calculated on the ordinary basis, of the proceeding. 5. Orders that to the extent that any costs are not recovered from the Defendant, the Plaintiffs' costs, calculated on the indemnity basis, be paid out of the estate of the deceased. Catchwords: CIVIL PROCEDURE — Hearing – Defendant litigant in person – Adjournment – Where the Defendant applies for adjournment by email sent at 1:00 a.m. on the date of the hearing – Non- appearance by the Defendant at the hearing - Application opposed at the hearing – Applicable principles – Procedural history relevant as are repeated suggestions made to the Defendant, at various directions hearings that he should be legally represented – Whether to grant the application — Interests of justice – Application for adjournment refused SUCCESSION – Uncontested application for Probate – Defendant, adult son of the deceased files caveat which lapses through effluxion of time – Statement of Claim filed by Plaintiffs – Defendant does not file an Appearance or any Defence although does send numerous emails to the Court and appears at some of the directions hearings – Many opportunities given to Defendant to file Defence and also the evidence to support his assertion that Will not valid – Failure to do so – Evidence that Will duly executed – Notice of motion filed seeking grant of Probate in solemn form - - Orders made COSTS - Indemnity costs sought against a litigant in person – Whether such an order should be made Legislation Cited: Civil Procedure Act 2005 (NSW) ss 56, 57, 58, 59, 60, 61, 66(1), 66(3) Succession Act 2006 (NSW) s 6 Supreme Court Rules (1970) NSW Pt 78 r 66(3), 69(1) Uniform Civil Procedure Rules 2005 (NSW) r 1.2, 6.1, 6.9, 6.10, 7.36, 14.3, 35.6, 35.7B Cases Cited: AHB v NSW Trustee and Guardian [2014] NSWCA 40 Al Dakhili v Al Kheurallah [2023] NSWSC 47 Alesco Corporation Limited v Te Maari [2015] NSWSC 469 Aon Risk Services Australia Pty v Australian National University (2009) 239 CLR 175; [2009] HCA 27 Bhagat v Royal and Sun Alliance Life Assurance Australia Ltd [2000] NSWSC 159 Bobolas v Waverley Council (2016) 92 NSWLR 406; [2016] NSWCA 139 Central Coast Animal Care Facility Incorporated v Wyatt [2022] NSWSC 1373 Chant v Curcuruto (No 2) [2021] NSWSC 882 City of Sydney Council v Satara [2007] NSWCA 148 Duraisamy v Sydney Trains [2019] NSWCA 269 Duraisamy v Sydney Trains [2020] HCASL 8 Golovanov v McGrath Property Management Pty Ltd [2022] NSWSC 177 Knorr v CSIRO (No 3) [2012] VSC 529 Lim v Lim [2022] NSWSC 454 Magjarraj v Asteron Life Limited [2009] NSWSC 1433 NAKX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1559 Nock v Austin (1918) 25 CLR 519; [1918] HCA 73 Quach v Health Care Complaints Commission (No 2) [2015] NSWCA 311 Rafailidis v Camden Council [2021] NSWSC 1087 Re Levy deceased (No 2) [1957] VR 662 Re Papavasiliou; Theofanous v Aizen (No 2) [2023] VSC 118 Rose v Richards [2005] NSWSC 758 Rowe v Stoltze (2013) 45 WAR 116; [2013] WASCA 92 Sali v SPC Ltd (1993) 67 ALJR 841; [1993] HCA 47 Tatchell v Glavimans [2007] WASC 321 Tugrul v Tarrants Financial Consultants Pty Limited (in liquidation) [No 2] [2013] NSWSC 1971 UBS AG v Tyne (as trustee of the Argot Trust) (2018) 265 CLR 77; [2018] HCA 45 Ward v Ward [2011] NSWSC 107 Wharton v Bancroft [2011] EWHC 3250 (Ch) Category: Principal judgment Parties: Mark Shallcross Hulme (first Plaintiff/Applicant) Suzette Rosila Hulme (second Plaintiff/Applicant) David Hulme (Defendant/Respondent) Representation: Counsel: B Oliak (Plaintiffs/Applicants)