Hope v Lyon [1999] NSWSC 532

New South Wales Supreme Court CITATION : Hope v Lyon [1999] NSWSC 532 CURRENT JURISDICTION : Equity Division FILE NUMBER(S) : 2948/97 HEARING DATE(S) : 3 June 1999 JUDGMENT DATE : 3 June 1999

PARTIES : Roger Michael Hope (P) Neil Lyon (D) JUDGMENT OF : Master McLaughlin

COUNSEL : Mr. C. Harris (P) SOLICITORS : Messrs Willis & Bowring (P) Neil Lyon (D) CATCHWORDS : DECISION :

SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

MASTER McLAUGHLIN

Thursday, 3 June 1999

2948/97 ROGER MICHAEL HOPE -v- NEIL LYON, ESTATE OF MYRTLE WINIFRED ALICE FOWLER JUDGMENT

1 MASTER: There is presently before the Court a Notice of Motion filed by the applicant, Nigel Douglas Hope, on 19 May 1999. By that Notice of Motion, which has been filed by the applicant in person, he seeks the following orders: 1. That the applicant be joined as a party to the proceedings.

2. That the proceedings be dismissed under Part 13 rule 5 of the Supreme Court Rules.

3. That the applicant and the presently named defendant, Neil Lyon, be awarded their costs on the indemnity basis. 2 It should here be recorded that the applicant (to whom I shall refer as "Mr Nigel Hope") has appeared in person upon the hearing of the Notice of Motion. 3 The defendant does not oppose --- indeed he consents to --- the relief which is sought in the Notice of Motion. The plaintiff, Roger Michael Hope, does not oppose the joinder of the applicant as a defendant. He does, however, oppose more than one set of costs being awarded to what will be the two defendants to the proceedings. Further, the plaintiff opposes the application for summary dismissal of the proceedings. 4 The proceedings were instituted by the plaintiff by summons filed on 24 June 1997. By that summons the plaintiff seeks, pursuant to section 7 of the Family Provision Act 1982, an order that provision be made for his maintenance, education or advancement in life out of the estate of the late Myrtle Winifred Alice Fowler (to whom I shall refer as the "deceased"). 5 The plaintiff is a son of the deceased. The applicant, Mr Nigel Hope, is the only other child of the deceased. The deceased died on 30 September 1996. She left a will dated 19 December 1975, probate whereof was on 4 December 1996 granted to the present defendant, Neil Lyon, who is the executor named in such will. 6 By that will the deceased left her house property situate at and known as 42 Arcadia Avenue, Gymea, to Mr Nigel Hope, together with all the household furniture, furnishings and effects and other articles of household use or ornament. 7 The deceased gave to the plaintiff a one half share in her residuary estate. However, the only assets which she left were the house property at 42 Arcadia Avenue, Gymea, and the contents of that house. The practical effect of the testamentary disposition of the deceased is that Mr Nigel Hope receives the entire estate of his late mother. 8 As the sole beneficiary under the estate it seems to me appropriate that, if he so desires, Mr Nigel Hope should be entitled to be joined as a defendant to the proceedings so that he will have the substantive carriage of the proceedings in resisting the claim of the plaintiff. 9 However, I consider, in accordance with the practice which is almost always adopted in the case of a major beneficiary seeking to be joined as an additional defendant, that such joinder should be at Mr Nigel Hope's own risk as to costs. That is, there is no guarantee that if he be ultimately successful in the proceedings he would receive an order that his costs be paid by some other party. In the circumstances of the instant case, that would mean that there would be no certainty that Mr Nigel Hope, if he be ultimately successful, would be entitled to receive a costs order against the plaintiff. 10 In cases brought under the Family Provision Act, the executor almost always is entitled to have his costs paid, since the executor is under a legal obligation to uphold the terms of the will. 11 In due course, therefore, I propose to make an order that Nigel Douglas Hope be joined as a defendant to the proceedings at his own risk as to costs. 12 I turn now to the application by Mr Nigel Hope for summary dismissal of the plaintiff's claim under Part 13 rule 5 of the Supreme Court Rules. Mr Nigel Hope submits that the proceedings should be dismissed upon each of the three grounds sets forth in subrule (1) of that rule, being: (a) no reasonable cause of action is disclosed; (b) the proceedings are frivolous or vexatious; (c) the proceedings are an abuse of the process of the Court. 13 The plaintiff, as a son of the deceased, is an eligible person within paragraph (b) of the definition of that phrase contained in section 6 (1) of the Family Provision Act. As such he has the standing to bring the present proceedings. It will be appreciated that Mr Nigel Hope is also an eligible person within the same paragraph of the definition. Indeed, he is the only other eligible person, apart from the plaintiff, in relation to their late mother. 14 Essentially it is the submission on the part of Mr Nigel Hope that the evidence filed on behalf of the plaintiff discloses that the plaintiff is in a far better financial and material position than is Mr Nigel Hope, that the plaintiff has not demonstrated need and that the plaintiff's claim, if it goes to a final hearing, will be unsuccessful. 15 Those submissions are addressed to the ground that no reasonable cause of action is disclosed. It does not seem to me that those submissions are appropriate in relation to a submission that the proceedings are frivolous or vexatious, or in relation to a submission that the proceedings are an abuse of the process of the Court. I do not see any basis upon which the claim of the plaintiff can be summarily dismissed on the ground that the proceedings are frivolous or vexatious, or that they are an abuse of the process of the Court. 16 As to the submission that no reasonable cause of action is disclosed, it is for Mr Nigel Hope to satisfy the Court that the plaintiff must, of necessity, fail at a final hearing of the proceedings. It is not, upon an application such as this, for the plaintiff to establish that he will inevitably win and be successful at a final hearing. It is for Mr Nigel Hope to establish that the plaintiff cannot succeed at a final hearing. 17 I do not express any views as to the likely outcome of such a final hearing. I restrict myself to saying that the evidence is such that it cannot be said that the plaintiff must inevitably lose. The plaintiff is, therefore, entitled to have the matter proceed to a final hearing before the appropriate tribunal, with an opportunity being given to all parties, not merely to rely upon affidavit evidence, but to cross-examine the deponents of affidavits filed on behalf of other parties. 18 Accordingly, I am not satisfied that Mr Nigel Hope has established that the plaintiff has no reasonable cause of action. It follows, therefore, that that part of Mr Nigel Hope's application must be dismissed. I will formulate my orders. 19 (The parties addressed on costs) 20 I make the following records: 1. I order that Nigel Douglas Hope be joined as a defendant to the proceedings, at his own risk as to costs. 2. I order that paragraph 2 in the Notice of Motion filed by Nigel Douglas Hope on 19 May 1999, be dismissed. 3. I order that the costs of the plaintiff and of the defendant, Neil Lyon, of the aforesaid Notice of Motion be the costs of those parties in the proceedings, and that there be no order in respect to the costs of the defendant, Nigel Douglas Hope, of the aforesaid Notice of Motion, to the intent that he will bear his own costs thereof. **********