Legal Research
Cases
Clay v Karlson

Clay v Karlson

Case [2001] WASC 141 5 June 2001

Jurisdiction

Standing

Testamentary Capacity

Res Judicata

Costs

Probate Law

Type to search within this case.

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: CLAY -v- KARLSON & ANOR [2001] WASC 141

CORAM: ROBERTS-SMITH J

HEARD: 19-23 MARCH 2001

DELIVERED : 5 JUNE 2001

FILE NO/S: CIV 2388 of 1996

BETWEEN: MARK GREGORY CLAY
Plaintiff
AND
KEVIN GUSTAV KARLSON
First Defendant
MARIE KURELIC
Second Defendant

Catchwords:

Costs - Probate action - Application for revocation of probate of codicil - Extensive interlocutory applications

Legislation:

Rules of the Supreme Court 1971 (WA) O 66

Result:

The plaintiff to pay the second defendant's costs of the claim and counterclaim (including reserved costs) to be taxed as between party and party

For the purposes of the taxation the limits in the Fourth Schedule to the Rules of the Supreme Court be removed

There be a certificate for counsel

Representation:

Counsel:

Plaintiff:     In person
First Defendant             :     No appearance
Second Defendant         :     Mr R Davis

Solicitors:

Plaintiff:     In person
First Defendant             :     No appearance
Second Defendant         :     Julian Tydde & Co

Case(s) referred to in judgment(s):

Anfranks Nominees Pty Ltd v Connell (1991) 6 WAR 271
Bartlett v Barclays Bank Trust Co Ltd [1980] Ch 515
Clay v Karlson & Anor [1999] WASC 71
Clay v Karlson & Anor, unreported; SCt of WA (Templeman J); Library No 970446; 28 August 1997
Clay v Karlson [1999] WASC 152
Clay v Karlson [1999] WASC 205
Clay v Karlson [2000] WASC 132
Clay v Karlson, unreported; SCt of WA; Library No 980118; 17 March 1998
Clay v Karlson, unreported; SCt of WA; Library No 980661; 10 November 1998
Clay v Karlson, unreported; SCt of WA; Library No No 990046; 10 February 1999
Colgate-Palmolive Co v Cussons (1993) 46 FCR 225
Co‑operative Bulk Handling Ltd v Australian Manufacturing Workers' Union (WA Branch), unreported; SCt of WA (Wheeler J); Library No 970190; 30 April 1997
EMI Records Ltd v Ian Cameron Wallace Ltd [1982] 2 All ER 980
Huntsman Chemical Company Australia Ltd v International Pools Australia Ltd (1995) 36 NSWLR 242
Mitchell v Gard (1863) 3 SW & TR 275; 164 ER 1280
Nock v Austin (1918) 25 CLR 519
Re Bond Corp Holdings Ltd(1990) 1 WAR 465
Re Green [1969] WAR 67
Re Herbert (1990) 101 FLR 279
Singleton v Macquarie Broadcasting Holdings Ltd (1991) 24 NSWLR 103
Spiers v English (1907) P 122
Twist v Tye (1902) P 92
Unoil International Pty Ltd v Deloitte Touche Tohmatsu [No 2] (1997) 18 WAR 190

Case(s) also cited:

Ajili v Dinica Popp, unreported; SCt of NSW (Windeyer J); 19 December 1995
Bailey v Bailey (1924) 34 CLR 558
Ball v Fulton (1942) 66 CLR 295
Banks v Goodfellow [1870] 5 QB 549
Barry v Butlin (1838) 2 Moo PCC 480
Beim v Alldrift, unreported; SCt of Qld (Chesterman J); 19 June 1998
Boreham v Prince Henry Hospital (1955) 29 ALJR 179
Collins v May [2000] WASC 29
Dufaur v Croft (1840) 3 Moo PC 136
Fulton v Andrew (1875) LR VII HL 448
In the Will of Wilson (1897) 23 VLR 197
Kinleside…

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 Clay v Karlson

Details

AGLC: Clay v Karlson [2001] WASC 141
Case: [2001] WASC 141
Decision Date

CaseChat Overview and Summary

The case between Mark Gregory Clay and Marie Kurelic involved a dispute over the validity of a codicil to a will executed by Alfred Clay, known as Alf. The plaintiff, Mark, sought to revoke the codicil on the basis that Alf lacked testamentary capacity when it was executed. The second defendant, Marie, was the residuary beneficiary of Alf's will and stood to benefit significantly from the codicil. The case had a lengthy history of interlocutory applications and disputes over pleadings and discovery. The trial was set for five days but was concluded in four days. The plaintiff conceded the case just before the hearing commenced on the fifth day. The court dismissed the action, granted judgment for the second defendant on the counterclaim, and pronounced and granted probate in solemn form of the will and codicil. The question of costs was reserved for further argument. The court held that the plaintiff had not shown adequate reason for an order of a different character in relation to the award of costs. The court ordered that the plaintiff pay the second defendant's costs of the claim and counterclaim, to be taxed as between party and party, and that the limits in the Fourth Schedule to the Rules of the Supreme Court be removed for the purposes of taxation. The court also ordered that there be a certificate for counsel.

Orders