Jones v Sherlock [2009] NSWSC 246

New South Wales Supreme Court

CITATION : Jones v Sherlock [2009] NSWSC 246

HEARING DATE(S) : 2 April 2009 JURISDICTION : Equity Division Expedition List

JUDGMENT OF : Brereton J

EX TEMPORE JUDGMENT DATE : 2 April 2009

DECISION : Leave granted to discontinue proceedings. Plaintiff to pay defendant's costs.

CATCHWORDS : WILLS – Costs – application for leave to make will for incapable person – person interested intervenes as defendant – plaintiff discontinues – whether court should make order other than that plaintiff pay defendant's costs

LEGISLATION CITED : (NSW) Succession Act 2006, s 19(1)

CATEGORY : Principal judgment

PARTIES : Louise Anne Jones (plaintiff) Ian Sherlock (defendant)

FILE NUMBER(S) : SC 1433/09

COUNSEL : Mr D Lloyd (plaintiff) Mr R Steele (defendant)

SOLICITORS : Whiteley, Ironside & Shillington (plaintiff) Baldock, Stacy & Niven (defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION EXPEDITION LIST

BRERETON J

Thursday 2 April 2009

1433/09 Louise Anne Jones v Ian Sherlock JUDGMENT (ex tempore) 1 HIS HONOUR: In these proceedings the plaintiff sought leave, under the (NSW) Succession Act 2006, s 19(1), to make an application for an order authorising that a Will be made on behalf of Nicholas Andrew Jones, who is an incapable person, and consequent on that leave, an order authorising a document to be the Last Will and Testament of Mr Jones. 2 The plaintiff was and is Mr Jones' mother. She now seeks leave to discontinue the proceedings, but seeks an order other than the usual consequential order that the plaintiff pay the defendant's costs. 3 The defendant, who is Mr Jones' natural father, was served with notice of the application and applied to be joined as a defendant, which order was duly made. In the course of the proceedings he learnt that an adoption order had been made in respect of Mr Jones, which had the effect of removing his parental rights and authorities and substituting those of the adoptive father, the plaintiff's present husband. Although I think this is quite a side issue, there appears to have been a consent to the adoption, although notice to the defendant of the adoption application was dispensed with when the adoption order was made. 4 I have not found the costs issue a straightforward one. On the one hand, the application was not unreasonably made by the plaintiff in the first place, and it was not made in the course of ordinary adversarial litigation. The defendant chose to intervene in the proceedings without being required to do so, and in that sense it was the defendant's choice to incur costs by becoming involved and opposing the application. 5 But two factors are decisive ultimately. The first is that the Will, leave to make which was sought, substantially duplicated what would transpire on intestacy in any event, so that the need for the application was at best dubious. 6 Secondly, and more significantly, the defendant's intervention has been totally vindicated, by the ultimate decision of the plaintiff to seek leave to discontinue the proceedings. 7 In those circumstances, I think the proper exercise of the discretion of the court is that the court should not "otherwise order". 8 I grant leave to the plaintiff to discontinue the proceedings. 9 I direct that notice of discontinuance be filed in the Registry within seven days. 10 I order that the plaintiff pay the defendant's costs of the proceedings. **********