CLAY -v- KARLSON & ANOR [1999] WASC 205
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [1999] WASC 205 | |
| Case No: | CIV:2388/1996 | 9 SEPTEMBER 1999 | |
| Coram: | MASTER SANDERSON | 9/09/99 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Leave to amend refused | ||
| PDF Version |
| Parties: | MARK GREGORY CLAY KEVIN GUSTAV KARLSON MARIE KURELIC |
Catchwords: | Practice and procedure Leave to amend statement of claim Turns on its own facts |
Legislation: | Nil |
Case References: | Re Stott (Dec) [1981] All ER 259 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
KEVIN GUSTAV KARLSON
First Defendant
MARIE KURELIC
Second Defendant
Catchwords:
Practice and procedure - Leave to amend statement of claim - Turns on its own facts
Legislation:
Nil
Result:
Leave to amend refused
(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):
Re Stott (Dec) [1981] All ER 259
Case(s) also cited:
Nil
(Page 3)
1 MASTER SANDERSON: This is an application by the plaintiff for leave to amend his statement of claim in terms of the minute of further reamended statement of claim dated 19 August 1999. For the sake of convenience, throughout these reasons I will refer to this document as the proposed minute. The action was commenced in 1996 and it relates to the will of the late Alf Clay.
2 Essentially what the plaintiff seeks to do is to have the grant of probate of that will and the codicil thereto set aside, and he seeks to do so on the basis that at the time the codicil was entered into the testator was not of sound mind and understanding and lacked testamentary capacity.
3 The writ was issued on 10 December 1996. The statement of claim has been amended on a number of occasions, the last such amendment being 7 July 1997. A minute of amended statement of claim was filed in July of this year, so some two years after the last amendment, and that has been superseded by the proposed minute.
4 What essentially the plaintiff seeks to do by this minute is to further expand the particulars of the matters which raise doubt as to the sound mind, memory and understanding of the testator and to his testamentary capacity. It is accepted by all parties that at the outset there is a presumption in favour of the validity of the grant of probate. What the plaintiff needs to do is raise matters which cast doubt on the presumption sufficient to displace the prima facie case. Having done that it is then for the defendants to satisfy the court…
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- Clay v Karlson [1999] WASC 205
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CaseChat Overview and Summary
The court's reasoning focused on the form and substance of the proposed amendments to the statement of claim. Master Sanderson noted that while the plaintiff had the right to challenge the validity of the codicil, any allegations had to be pleaded in proper form. The court found several issues with the proposed amendments. For instance, the court deemed certain paragraphs to be either irrelevant or improperly pleaded, as they either did not advance the case or were too vague to be effective. The court also noted that some paragraphs seemed to introduce evidence rather than pleading material facts. Moreover, some paragraphs were considered to be speculative and not based on proper pleadings. The court concluded that the plaintiff could not rely on these amendments as they did not meet the necessary legal standards for pleadings.
Ultimately, the court refused the plaintiff's application for leave to amend the statement of claim. The court suggested that the plaintiff could bring in a further minute addressing the issues identified, but the court would set a timeframe for this to occur. The court did not provide specific details on the final orders but indicated that further proceedings would be contingent on the plaintiff's ability to properly amend the statement of claim.
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