Blessed v Byrne [2024] NSWSC 949

Supreme Court New South Wales

Medium Neutral Citation: Blessed v Byrne [2024] NSWSC 949 Hearing dates: 4 July, 2 August 2024 Date of orders: 2 August 2024 Decision date: 02 August 2024 Jurisdiction: Equity - Succession & Probate List - Family Provision Before: Meek J Decision: Plaintiff's summons dismissed. Catchwords: CIVIL PROCEDURE — Family Provision —Summary disposal — Dismissal of proceedings — Whether the proceedings were frivolous or vexatious, disclosed no reasonable cause of action or were an abuse of process — Plaintiff's summons simply sought "right to reside" in defendant's property as relief, but other terminology used in the "particulars" to the summons indicated that a form of family provision claim was sought — Defendant is not the nominated executor of the deceased's Will nor otherwise an appropriate person to represent the deceased's estate — Held that the defendant is not an appropriate party to the claim and the claim disclosed no reasonable cause of action against him Legislation Cited: Civil Procedure Act 2005 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Stanizzo v Badarne [2014] NSWSC 1334 Category: Principal judgment Parties: Robyn B Blessed (Plaintiff) David Martin Byrne (Defendant) Representation: Counsel: D M Flaherty (Defendant)

Solicitors: Hinde Ginges Boyd Lawyers (Defendant)

No appearance (Plaintiff) File Number(s): 2024/184217

EX TEMPORE JUDGMENT (REVISED)

Introduction 1. HIS HONOUR: The application before the Court is by way of an amended notice of motion filed by the defendant in these proceedings, in which he seeks to have the proceedings dismissed pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) or alternatively be removed as a party. The defendant is one of the children of the late Peter Gordon Byrne (the deceased). The deceased died on 6 July 2020, leaving a Will dated 1 July 2020. The plaintiff in the proceedings is one of the daughters of the deceased. 2. On 17 May 2024, the plaintiff filed with the Court a form of summons. The cover sheet of the summons contains the words "FAMILY PROVISION CLAIM" in the "Title of Proceedings" section. Those words are also used to describe the "Type of Claim" on the cover page. 3. On the second page of the summons, the relief claimed is simply described by the words "RIGHT TO RESIDE". 4. There is a third page to the summons, headed "PARTICULARS", which I will set out in the Schedule to this judgment. It appears that the matters set out in this part of the summons are the "facts" or matters upon which the plaintiff relies for her claim.