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Berzins v Russo

Berzins v Russo

Case [2008] SASC 192 17 July 2008

Jurisdiction

Standing

Limitation Periods

Discovery & Disclosure

Abuse of Process

Res Judicata

Civil Litigation & Procedure

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SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
BERZINS & ANOR v RUSSO & ANOR
[2008] SASC 192
Reasons of Judge Lunn a Master of the Supreme Court
17 July 2008
PROCEDURE
Pleading under Supreme Court Rules 2006 - one defendant in Probate action under 6R 205 seeking to strike out defence and counterclaim of another defendant under 6R 104 - whether this can be a resort to evidence - requirements for pleading a counterclaim - not pleaded with sufficient particularity or to disclose all material facts on case to be made out at trial - whether can obtain disclosure of documents before having to plead particulars - defence and counterclaim struck out.

BERZINS & ANOR v RUSSO & ANOR
[2008] SASC 192
Reasons on the second defendant’s application to strike out the defence and counterclaim of the first defendant.

JUDGE LUNN: George Martin Broders (“the deceased’) died on 7 October 2006. The plaintiffs are his executors appointed under a will dated 20 June 2006. They have instituted this probate action seeking a grant of probate over that will in solemn form. The first defendant is a daughter of the deceased. The second defendant is the principal beneficiary under the will of 20 June 2006.
On 4 October 2007 the first defendant brought an interlocutory application under 6R 146 seeking orders for non-party discovery against 24 persons and on 7 November a further application for discovery against another non-party. When that first application initially came before me I expressed doubt whether any order could be made under 6R 146 until after the close of pleadings. The first defendant had the application adjourned. On 18 January 2008 she filed an amended defence and counterclaim (“the defence and counterclaim”) which pleaded that in respect of the 20 June 2006 will the deceased did not have testamentary capacity and in making it he had been subjected to undue influence by the second defendant. She counterclaimed for probate in solemn form of an earlier will dated 4 November 1990. On 25 March 2008 the solicitors for the second defendant wrote to the first defendant’s solicitors requesting that they amend the counterclaim to plead proper particulars of the allegations made. By a responding letter of 17 April 2008 the solicitor for the first defendant gave a few particulars, but asserted that either the defence and counterclaim complied with the Rules or that they would be obtaining a medical report from Dr Heckler, an expert gerontologist, after they had obtain the non party discovery previously sought.
On 7 May 2008 the second defendant issued an application in the following terms.
1That the Defence and Counterclaim of the first defendant be struck out as an abuse of process of the Court.
2Alternatively, that the defence and counterclaim of the first defendant be struck out pursuant to Rule 104 for failure to disclose a reasonable cause of action or defence and failure to comply with Rules 98, 99 and 100.
3Alternatively, an order pursuant to Rule 103 that the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Berzins v Russo

Details

AGLC: Berzins v Russo [2008] SASC 192
Case: [2008] SASC 192
Decision Date: 17 July 2008

CaseChat Overview and Summary

In the Supreme Court of South Australia, Berzins and another are the plaintiffs in a probate action, seeking a grant of probate over the will of George Martin Broders, who passed away on 7 October 2006. The first defendant is a daughter of the deceased, and the second defendant is the principal beneficiary under the will dated 20 June 2006. The first defendant filed a defence and counterclaim on 18 January 2008, alleging that the deceased lacked testamentary capacity when he made the will and that he was subjected to undue influence by the second defendant. The second defendant applied to strike out the defence and counterclaim of the first defendant.

The legal issues in the case were whether the pleadings of the first defendant were sufficient, and if not, whether they could be struck out under the relevant Rules. The court had to determine whether the pleadings were in compliance with the Supreme Court Rules 2006 and if they disclosed a reasonable cause of action or defence. The court also had to consider whether the first defendant should be given permission to re-plead her defence and counterclaim.

In its reasoning, the court found that the defence and counterclaim of the first defendant were not pleaded with sufficient particularity or to disclose all material facts on the case to be made out at trial. The court held that the pleadings were too general and lacked the necessary particularity, causing prejudice to the proper conduct of the action. As a result, the court struck out the defence and counterclaim filed on 18 January 2008. The first defendant was granted liberty to apply for permission to file any further defence and counterclaim, while the applications by the first defendant under 6R 146 of 4 October 2007 and 7 November 2007 were dismissed. The first defendant was also ordered to pay the second defendant's costs for the application to strike out and for non-party discovery, and the second defendant was granted liberty to apply for any supplementary orders relating to costs.

The final orders of the court were as follows:

1. The amended defence and counterclaim of the first defendant filed on 18 January 2008 be struck out as pleadings.
2. Liberty to the first defendant to apply for permission to file any further defence and counterclaim.
3. The applications by the first defendant under 6R 146 of 4 October 2007 and 7 November 2007 are dismissed.
4. The first defendant is to be liable to the second defendant for her costs as agreed or adjudicated upon for the application to strike out and for non-party discovery.
5. Hearings on 10 and 26 June 2008 certified fit for counsel for the second defendant.
6. The first defendant is to be liable to the plaintiffs for their costs as agreed or adjudicated upon of the applications for non-party discovery.
7. Liberty to the second defendant to apply for any supplementary orders relating to costs.
8. A further directions hearing set for 25 July 2008 at 9.45 am.

Orders