Hand Estate - Cummins v Hand & Anor [2009] NSWSC 939 (7 September 2009)

Last Updated: 10 September 2009

NEW SOUTH WALES SUPREME COURT

CITATION:
Hand Estate - Cummins v Hand & Anor [2009] NSWSC 939


JURISDICTION:
Equity Division
Probate List

FILE NUMBER(S):
108271/09

HEARING DATE(S):
7 September 2009

JUDGMENT DATE:
7 September 2009

EX TEMPORE DATE:
7 September 2009

PARTIES:
Patricia Margaret Cummins (Plaintiff)
Michael Hand (First Defendant)
Eileen Edmunds (Second Defendant)

JUDGMENT OF:
Palmer J

LOWER COURT JURISDICTION:
Not Applicable

LOWER COURT FILE NUMBER(S):
Not Applicable

LOWER COURT JUDICIAL OFFICER:
Not Applicable



COUNSEL:
C.D. Wood (Plaintiff)
M.G. Coffey (Sol) (Defendants)

SOLICITORS:
Bolster & Co (Plaintiff)
Gells (Defendants)


CATCHWORDS:
CROSS VESTING – Whether NSW or Queensland Supreme Court more appropriate forum – all considerations equal but parties’ and witnesses’ convenience dictated Queensland.

LEGISLATION CITED:
- Family Provision Act 1982 (NSW)
- Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) – s 5(2)(b)(iii)
- Succession Act 1981 (Qld) – Pt 4

CATEGORY:
Procedural and other rulings

CASES CITED:
James Hardie & Coy Pty Ltd v Barry [2000] NSWCA 353; (2000) 50 NSWLR 357

TEXTS CITED:


DECISION:
Cross-vesting order made.



JUDGMENT:

108271/09 Hand Estate: Cummins v Hand & Anor

JUDGMENT – Ex tempore
7 September, 2009

1 On 15 May 2009, the Plaintiff, Ms Cummins, commenced proceedings in this court for a grant of probate to her in solemn form of a will of her father, William Hand, who died on 29 October 2008. The Defendants in the proceedings are Mr Michael Hand and Ms Edmonds, who are the brother and sister of Ms Cummins.

2 On the same, day Mr Hand and Ms Edmonds commenced proceedings in the Supreme Court of Queensland seeking a declaration that the will is invalid in that the Deceased lacked testamentary capacity, or made the will by reason of undue influence, an order granting Letters of Administration upon intestacy to them, a declaration that Ms Cummins holds certain property on trust for the Deceased's estate and, in the alternative to the foregoing relief, orders for further provision for them out of Deceased's estate, pursuant to Pt 4 of the Succession Act 1981 (Qld), or pursuant to the Family Provision Act 1982 (NSW).

3 In their Defence to the New South Wales proceedings, pleaded invalidity of the will upon the grounds which they have raised in the Queensland proceedings.

4 By a Notice of Motion filed on 31 July 2009, Mr Hand and Ms Edmonds seek an order pursuant to s 5 Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) transferring the New South Wales proceedings to the Supreme Court of Queensland. Alternatively, they seek an order that the New South Wales proceedings be stayed until the Queensland proceedings are determined.

5 It is common ground that whether the contest is fought in the NSW Supreme Court or the Queensland Supreme Court all of the issues currently raised in both sets of proceedings ought to be heard together. In short, if the Notice of Motion is dismissed, Mr Hand and Ms Edmonds will bring proceedings in this Court which will seek the relief sought in the Queensland proceedings, to the extent that their Defence does not already seek it.

6 The application now made is brought under s 5(2)(b)(iii) of the Act. The essential question is, therefore, which court is the more appropriate forum to determine the litigation. In this case, the answer turns on which court will be able to hear and determine the proceedings more efficiently and expeditiously: see for example, James Hardie & Coy Pty Ltd v Barry [2000] NSWCA 353; (2000) 50 NSWLR 357.

7 The Deceased was born in Queensland and lived for most of his life in Queensland. He had his family home in Brisbane. He bought a holiday house at Tweed Heads in NSW and spent his last years there, although he still owned the family house in Brisbane.

8 He died at Tweed Heads. He owned property both in NSW and in Queensland. Both courts would be able to grant probate or letters of administration, as required, in respect of his estate. Both courts would be able to grant relief under their respective family provision legislation. Whether the Deceased died domiciled in NSW or in Queensland may well be an issue in the proceedings, whether they are contested in NSW or in Queensland.

9 Neither party submits that one or other side will be advantaged or disadvantaged in terms of substantive or procedural law, whichever State court determines the case. There is nothing to suggest that the litigation will come on for hearing more quickly in one court than in another. In both courts, no doubt, the litigation will be case managed as effectively as possible.

10 Ultimately which court is the more appropriate in this case comes down to a question of cost and convenience. Cost is always a consideration, but even more so in a small or modest estate. The Deceased's estate in this case would properly described as modest.

11 In the present case, Ms Cummins lives in Tweed Heads but has instructed Queensland solicitors. The Defendants live in Brisbane and have instructed Brisbane solicitors. The medical evidence will come from the Deceased's Brisbane doctors, and possibly from doctors in Tweed Heads. All of the witnesses will come from Queensland or from Tweed Heads. In short, all of the witnesses and the solicitors principally instructed by both sides are much more conveniently located for the case to be determined in the Supreme Court of Queensland than in this Court. If the proceedings are heard in Sydney, it is probable that there will be additional delay and expense occasioned by the necessity of both sides instructing Sydney agents and having to transport witnesses to, and accommodate them in, Sydney for conferences and for the hearing.

12 Accordingly, I conclude it is more likely than not that cost and delay in the proceedings will be less if they are heard in the Supreme Court of Queensland than if they are heard in this Court. It is therefore in the interests of justice that a cross-vesting order be made.

13 I make order 1 as sought in the Notice of Motion.

14 The costs of this motion will be costs in the cause.

– oOo –

LAST UPDATED:
10 September 2009