Hewitt v Gardner; Hewitt v Gardner [2009] NSWSC 705

New South Wales Supreme Court

CITATION : Hewitt v Gardner; Hewitt v Gardner [2009] NSWSC 705

HEARING DATE(S) : 14 July 2009

JUDGMENT DATE : 24 July 2009

JURISDICTION : Equity Division

JUDGMENT OF : Ward J

DECISION : Orders made under r 7.10

CATCHWORDS : SUCCESSION - family provision and maintenance – practice – plaintiffs commenced proceedings under Family Provision Act – no general grant of probate or administration – limited grant obtained under former s 41A of Probate and Administration Act prior to commencement of proceedings – whether appropriate to appoint representative of estate or continue in absence of representative under UCPR 7.10 – order made to continue in absence of representative of estate. - PRACTICE – commencement of proceedings – parties – proceedings commenced seeking, inter alia, to set aside transaction of deceased on grounds of undue influence – no general grant of probate or administration – chose in action formed part of the estate – whether plaintiffs had standing to pursue undue influence claim – whether proceedings a nullity – whether representative of estate should be appointed under UCPR 7.10 – whether power exists to do so – held that plaintiffs had no standing to pursue undue influence claim – proceedings not a nullity as plaintiffs had standing in respect of other claims brought in the proceedings – representative appointed in respect of undue influence claim under UCPR 7.10.

Chancery Procedure Act 1852 (15 & 16 Vic c 86) Contracts Review Act 1980 Family Provision Act 1982 LEGISLATION CITED : Probate and Administration Act 1898 Succession Act 1981 (Qld) Supreme Court Act 1970 Supreme Court Rules Uniform Civil Procedure Rules