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[2025] NSWSC 510
General information, not legal advice.
Supreme Court of NSW
2025-05-15
Kunc J
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Hordern v Hordern [2025] NSWSC 510
Hearing dates: 15 May 2025
Date of orders: 15 May 2025
Decision date: 15 May 2025
Jurisdiction: Equity - Family Provision List
Before: Kunc J
Decision: Plaintiff’s notice of motion dismissed with costs
Catchwords: CIVIL PROCEDURE — Notices to produce — Before hearing — Relevant to a fact in issue — Oppression
Legislation Cited: Succession Act 2006 (NSW)
Category: Procedural rulings
Parties: Dinah Hordern (Plaintiff)
Jean Ann Hordern (First Defendant)
Mack Phillip Hordern (Second Defendant)
Andrew James Kerr (Third Defendant)
Representation: Counsel:
L Ellison SC (Defendants)
Solicitors:
Dinah Hordern (Self Represented)
McPherson Park Lawyers (Defendants)
File Number(s): 2024/80408
Publication restriction: Nil
These proceedings concern the estate of the late Samuel Carr Hordern (the deceased), who died on 2 August 2023. The plaintiff (who appeared for herself and asked me to address her as ) is one of the deceased's natural children. The first defendant is Dinah's stepmother. Under the deceased's final will made on 28 June 2017, the deceased gave to the first defendant his shares in Ltd and shares in a company called Nominees Pty Ltd, together with his entitlements under the Hordern Superannuation . There were then specific legacies of $250,000 each to Dinah, her brother and two step-siblings. After some smaller specific legacies, the rest and residue of the deceased’s estate was left to the first defendant.
The value of the estate for probate purposes is approximately $10 million. Mr Ellison of Senior Counsel, who appeared for the estate, informed the Court that in due course an updating affidavit will be provided which may have the result that the value of the estate for the purposes of the proceedings could be increased by up to a further $2 million. In addition to the sworn value of the estate, the first defendant’s executor’s affidavit discloses what may be relevant property transactions in relation to the Fund and the shares in ASX and Currency. Those transactions may mean that there is notional estate available of a further $10 million.
Dinah commenced these proceedings by summons filed on 1 March 2024 for a family provision order under the Succession Act 2006 (NSW). By Dinah’s notice of motion filed on 31 March 2025, Dinah sought an order described as being for "full disclosure prior to 7 April 2025; unless an extension is granted." What Dinah describes as full disclosure is amplified by an attachment to her notice of motion of 12 pages comprising 34 paragraphs. I will refer to the attachment as the notice to produce.
The material sought in the notice to produce is of extraordinary breadth and does not appear to be related to any issue relevant to the determination of Dinah’s family provision claim. To give an idea of that breadth, it is sufficient to reproduce paragraph 1 of the notice to produce.
“1. With respect to any legal entity, trust land or business managed, directed, by my father [where the deceased had any shareholding] by the deceased including individually or by beneficiary of any trust by the deceased records;
(i) All assets held by such including real property, vehicles, deposited funds in banks, superannuation and other, shares, managed funds, investment portfolios, cash, valuables, and loans provided by the entity to any person, entity or trust.
(ii) Loans provided since 2000 by such entities or trusts to any person, entity or and the identity of any person, entity or trust in which loan was made to;
(iii) All lodged taxation returns, diaries, work notes, and or financial reports, memos, resolutions, loan agreements since 2000.”
With no disrespect intended, the purpose of the notice to produce appears to be an attempt to undertake a comprehensive inquiry into the deceased's affairs since 2000.
In response to Dinah's motion, the defendants have filed a notice of motion on 24 April 2025 for an order that "the plaintiff's notice of motion filed on 31 March 2025 be struck out or otherwise summarily dismissed" (the estate’s motion). It is not immediately apparent to me why it was necessary for that motion to be filed, given that it would have been sufficient for the estate to have opposed Dinah's motion. Nothing really turns on what may be a procedural infelicity, given that Mr Ellison SC has contended that the notice to produce is vexatious and oppressive for being unrelated to any issue in the proceedings and of extraordinary width.
Dinah informed me that she seeks an order for provision from the estate for approximately $7 million. Mr Ellison SC informed me that the first defendant will not be putting her affairs in issue at the hearing of Dinah's family provision claim. Those two matters alone are sufficient to demonstrate that for the purposes of these proceedings (and even before one takes into account the possible $10 million of notional estate) there is no issue that there is more than enough in the estate to meet Dinah's claim if she succeeds in full. In saying that, I express no view about Dinah’s prospects of success.
Mr Ellison SC has also informed me that proceedings have been commenced for family provision by Dinah's brother. But again, although I have no information about the size of his claim, I proceed on the basis the size of the estate, together with any national estate, is more than adequate to meet both claims.
Those matters alone are sufficient, quite apart from the breadth and form of the notice to produce, to satisfy the Court that the leave sought for the issue of the notice to produce should not be granted. It would be inimical to the just, quick and cheap disposition of these proceedings for them to become a roving royal commission into the affairs of the estate and the deceased since 2000.
Dinah sought to justify the notice to produce on the basis of her concerns about what she described as "fraud" in relation to the administration of the estate and the conduct of the deceased's affairs. I hasten immediately to add that none of the evidence that I have seen today would justify the submission, if made by a legal practitioner, that there is some proper evidentiary basis to permit the serious allegation of fraud to be made.
Dinah relied on two matters in particular in support of the allegation. The first was a document apparently executed by the deceased in 2000 witnessed by the first defendant, which described the first defendant as a solicitor. Dinah submitted that, to the best of her enquiries, the first defendant has never been a solicitor. She submitted that this was a false representation which was the basis for her submission that the first defendant had been involved since at least 2000 in unlawful matters concerning the affairs of the deceased and now the estate, such that she was an untrustworthy person. I do not accept that submission. There is no evidence before me of the searches Dinah has undertaken, or any basis upon which I can conclude today that the first defendant was or was not a solicitor in 2000. Even if she was not, that fact (even without any explanation by the first defendant if an explanation were required) does not justify the serious allegation made by Dinah, or any allegation of impropriety on the part of the first defendant at all.
The second matter upon which Dinah relies is a company search which discloses that before probate was granted on 26 March 2024, there was a change in the shareholdings and directorships of Currency with the deceased and his brother recorded as ceasing to be directors and the first defendant assuming the role of director and sole shareholder. Dinah is concerned that this occurred before the grant of probate.
Again, she submits that this being done, apparently by the first defendant, demonstrates some improper conduct on the part of the first defendant. I do not accept that submission. I have no evidence before me today as to the circumstances of the deceased's brother (Mr M P Hordern, who is also the second defendant) ceasing to be a director of Currency. However, I have become aware, in the course of dealing with another motion in the proceedings today, that Mr M P Hordern is 92 years of age and in very poor health. On the basis of that evidence, I have earlier made an order that the conduct of these proceedings be undertaken by the first defendant and the third defendant. It may well be that those very same circumstances of age and ill health provide an explanation as to why Mr M P Hordern has ceased to be a director of Currency.
Plainly enough, the demise of the deceased is why he has ceased to be a director of Currency. As I have already noted, under the will of the deceased, his shareholding in Currency was devised to the first defendant. I can see no basis for an allegation of impropriety in relation to the transfer of the shareholding, even though it may have occurred prior to the grant of probate. While that course may be imperfect as a matter of technicality, it does not bespeak improper conduct on the part of the first defendant.
I have already indicated I will not grant leave for the notice to produce because it is unrelated to any fact in issue and oppressive as to time and subject matter. I accept that Dinah has real concerns about the conduct of her father's affairs, and the administration of the estate. However, those concerns are unsupported by any evidence before me. Therefore, as a further and alternative basis on which I decline leave, the Court also finds that the notice to produce is a fishing expedition by Dinah to satisfy her wish to explore fully the affairs of the deceased and the estate based upon her unproven concerns.
Given the outcome which I foreshadowed, Mr Ellison SC applied for the estate's costs of the two motions. Dinah explained to me that she opposed such an order because she would not be able to afford to pay those costs. That is not a proper basis upon which the Court would exercise its discretion to depart from the usual outcome that costs should follow the event. Costs should follow the event in this case. Dinah will be ordered to pay the estate's costs of both Dinah’s motion and the estate’s motion, and the defendants will be entitled to their costs of those motions out of the estate on the indemnity basis.
The orders of the Court are:
Dismiss the plaintiff's notice of motion filed 31 March 2025;
The plaintiff is to pay the defendants' costs of the plaintiff's motion filed 31 March 2025, and of the defendants’ motion filed 9 May 2025; and
The defendants are entitled to their costs of those two motions out of the estate on the indemnity basis.
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grammatical amendment in paragraph 3
Hordern
Hordern [2025] NSWSC 510