Hutchinson v Timmins; Estate of Kevin Henry Fox (Deceased) [2018] NSWSC 1143

Supreme Court New South Wales

Medium Neutral Citation: Hutchinson v Timmins; Estate of Kevin Henry Fox (Deceased) [2018] NSWSC 1143 Hearing dates: 12 December 2017 Date of orders: 27 July 2018 Decision date: 27 July 2018 Jurisdiction: Equity Before: Slattery J Decision: Subpoena stood over to trial. Mason Lawyers restrained from acting for the defendant. Costs reserved for argument. Catchwords: LEGAL PRACTITIONERS – motion to restrain solicitors from continuing to act in proceedings – alleged conflict of interest – plaintiffs seek to set aside orders releasing rights against the estate of their late mother and against their step-father under Succession Act 2006, s 95 – plaintiffs allege on their application for approval of the release that their step-father and the then solicitors for their mother's estate misled the Court by withholding documents in their possession from the plaintiffs – the practice of the solicitor then acting for the plaintiffs' late step-father was later acquired by the present solicitors for the defendant – the plaintiffs claim that the solicitors for the defendant can now no longer continue to act for the defendant.

SUBPOENAS – plaintiffs issue subpoena to the defendant for production of a solicitor's file relating to the giving of instructions for the drafting of the plaintiffs' mother's will – documents not produced – whether, and if so, what further order should be made. Legislation Cited: Civil Procedure Act 2005, s 68 Succession Act 2006, s 95 Cases Cited: Aboody v Ryan (2012) 17 BPR 32,359 Bahonko v Nurses Board of Victoria (No 3) [2007] FCA 491 In the Matter of the Consortium Centre Pty Limited [2012] NSWSC 898 Kallinicos v Hunt (2005) 64 NSWLR 561 Lake Burrendong State Park Trust v Thompson [2011] NSWSC 1554 Larne-Jones v Human Synergistics Australia Ltd [2012] FMCA 1209 Mark Fogerty-Young v Raymond Jason [2013] VSC 570 Mitchell v Burrell [2008] NSWSC 772 Quach v Vu [2009] NSWSC 131 Westpac Banking Corporation v Newey [2013] NSWSC 533 Category: Procedural and other rulings Parties: Gail Hutchinson (First Plaintiff) Karen Bermingham (Second Plaintiff) Leonard John Timmins (Defendant) Representation: Counsel: B J Skinner with L Clarke (Plaintiffs) H Stowe with N J Simpson (Defendant)