Thurlow v Thurlow [2015] NSWSC 1323

Supreme Court New South Wales

Medium Neutral Citation: Thurlow v Thurlow [2015] NSWSC 1323 Hearing dates: 3 September 2015 Decision date: 03 September 2015 Jurisdiction: Equity Before: Hallen J Decision: (a) Grants leave to the Defendant/applicant to amend the notice of motion filed 10 June 2015 by substituting the reference to UCPR rule 13.1 with a reference to UCPR rule 13.4. (b) Orders the Plaintiff's proceedings be dismissed generally. (c) Orders that the Plaintiff pay the Defendant's costs of the proceedings, including the costs of the notice of motion filed 10 June 2015. (d) Directs that any notice of motion and affidavits in support of an application for a legal practitioner, or legal practitioners, to bear the costs of the proceedings or of the notice of motion filed 10 June 2015 be served by 4:00 p.m. on Thursday, 24 September 2015. (e) Directs that any evidence in reply by the legal practitioner or legal practitioners, be served by Thursday, 22 October 2015. (f) Stands the matter over to the list of the Family Provision List Judge on Friday, 19 February 2016. Catchwords: SUCCESSION – PRACTICE & PROCEDURE – Claim for family provision order by son of the deceased – No grant of Probate sought by Defendant the named executrix and sole beneficiary of the deceased's estate – Application for summary dismissal by Defendant – UCPR rule 13.4 – Whether there is any property that arguably could form part of the estate or notional estate of the deceased – If not, whether the proceedings are frivolous or vexatious – No assertion made by Plaintiff and supported by evidence that real property of which Defendant is, currently, and was for many decades, the registered proprietor, held by her in whole or in part on trust for the deceased – Other property held by company which was deregistered about two years prior to death of the deceased with negligible assets – Plaintiff unable to point to bases upon which any property held by the Defendant may be designated as the estate or notional estate of the deceased Legislation Cited: Civil Procedure Act 2005 (NSW) Succession Act 2006 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 Hitchcock v Pratt [2010] NSWSC 1508 Ren v Jiang [2014] NSWCA 388 Yesilhat v Calokerinos [2015] NSWSC 1028 Texts Cited: LexisNexis Butterworths, Ritchie's Uniform Civil Procedure NSW, vol 1 (at 96) [13.4.15] Category: Procedural and other rulings Parties: William Lawrence Thurlow (Plaintiff) Lorraine Joyce Thurlow (Defendant) Representation: Counsel: Mr T Flaherty (Plaintiff/Respondent) Mr A M Gruzman (Defendant/Applicant)