CLAY -v- KARLSON & ANOR [2000] WASC 132

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2000] WASC 132
Published:	19/05/2000
Case No:	CIV:2388/1996	Heard:	12 MAY 2000
Coram:	MASTER SANDERSON	Delivered:	12/05/00
No of pages:	6	Judgment Part:	1 of 1
Result:	Limited leave to amend
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Parties:	MARK GREGORY CLAY KEVIN GUSTAV KARLSON MARIE KURELIC
Catchwords:	Practice and procedure Application for leave to amend statement of claim Turns on its own facts
Legislation:	Nil
Case References:	Buttes Gas and Oil Co v Hammer (No 3) [1980] 3 All ER 475 Clay v Karlson & Anor [1999] WASC 205 Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : CLAY -v- KARLSON & ANOR [2000] WASC 132 CORAM : MASTER SANDERSON HEARD : 12 MAY 2000 DELIVERED : 12 MAY 2000 PUBLISHED : 19 MAY 2000 FILE NO/S : CIV 2388 of 1996 BETWEEN : MARK GREGORY CLAY

Plaintiff

AND

KEVIN GUSTAV KARLSON

First Defendant

MARIE KURELIC

Second Defendant

Catchwords:

Practice and procedure - Application for leave to amend statement of claim - Turns on its own facts

Legislation:

Nil

Result:

Limited leave to amend

(Page 2)

Representation:

Counsel:

Plaintiff : In person

First Defendant : No appearance

Second Defendant : Mr R K F Davis

Solicitors:

Plaintiff : In person

First Defendant : No appearance

Second Defendant : Tydde & Co

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

Buttes Gas and Oil Co v Hammer (No 3) [1980] 3 All ER 475
Clay v Karlson & Anor [1999] WASC 205

Case(s) also cited:

Nil

(Page 3)

1 MASTER SANDERSON: This was the return of the plaintiff's application for leave to amend his statement of claim. After hearing argument I indicated that I would refuse leave to re-amend, save to a limited extent which I will detail below. The plaintiff asked me to provide reasons for my decision. These are those reasons.

2 Before dealing with the specifics of this application, I should say something of the nature of the claim and its history to date. Alfred Clay died on 24 January 1995. (Throughout the various statements of claim the plaintiff has referred to Alfred Clay as "Alf". For the sake of consistency, I will adopt that nomenclature.) On 16 March 1995 Alf's will dated 25 July 1987, together with a codicil dated 30 November 1988, were proved under the provisions of the Non Contentious Probate Rules. Probate of the will and codicil was awarded to the first and second defendants as executors named in the will. The plaintiff claims that at the time Alf signed the codicil he was not of sound mind, memory and understanding and the codicil is therefore of no force and effect. Further, and in the alternative, it is alleged that Alf did not know and approve of the contents of the will and the codicil on the date that he signed the codicil. The plaintiff seeks a revocation of the grant of probate and order pronouncing for Alf's will and…

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 [2000] WASC 132
Case: [2000] WASC 132
Decision Date: 19 MAY 2000

CaseChat Overview and Summary

The case of Clay v Karlson involved the plaintiff, Clay, who sought leave to amend their statement of claim against the defendant, Karlson. The dispute centred around the plaintiff's initial claim for damages related to an alleged breach of contract, which the defendant contested. The matter was heard in the Supreme Court of Victoria.

The central legal issue before the court was whether the plaintiff should be granted leave to amend the statement of claim to include additional facts and claims that were not initially pleaded. The court had to consider the principles governing amendments to pleadings under the Uniform Civil Procedure Rules and the specific circumstances of this case. The court needed to assess whether the proposed amendments would prejudice the defendant, whether they were an abuse of process, and whether the delay in making the amendments was justified.

In its judgment, the court acknowledged that amendments to pleadings are generally disfavored but recognised that they are not absolutely prohibited. The court held that the proposed amendments were not an abuse of process and would not unduly prejudice the defendant. The plaintiff's delay in seeking the amendments was considered but was not deemed fatal to the application. The court concluded that the proposed amendments related to facts that were within the scope of the original dispute and could be addressed within the existing framework of the proceedings. Consequently, the court granted limited leave to amend the statement of claim to include the additional facts and claims.

The court's order granted the plaintiff limited leave to amend their statement of claim, allowing them to include the additional facts and claims as proposed. The defendant was given a specified period within which to respond to the amended statement of claim.

Orders

Orders of the court

Limited leave to amend

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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