CLAY -v- KARLSON & ANOR [1999] WASC 205

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[1999] WASC 205
Case No:	CIV:2388/1996	Heard:	9 SEPTEMBER 1999
Coram:	MASTER SANDERSON	Delivered:	9/09/99
No of pages:	5	Judgment Part:	1 of 1
Result:	Leave to amend refused
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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

CITATION : CLAY -v- KARLSON & ANOR [1999] WASC 205 CORAM : MASTER SANDERSON HEARD : 9 SEPTEMBER 1999 DELIVERED : 9 SEPTEMBER 1999 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 - 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statement of claim was filed in July of this year, so some two years after the last amendment, and that has been superseded by the proposed minute.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…

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 [1999] WASC 205
Case: [1999] WASC 205
Decision Date

CaseChat Overview and Summary

The case of Clay v Karlson & Anor [1999] WASC 205 involved Mark Gregory Clay, the plaintiff, who sought leave to amend his statement of claim. The matter related to the will of the late Alf Clay and specifically challenged the validity of the codicil on the grounds that the testator lacked testamentary capacity at the time of its execution. The defendants, Kevin Gustav Karlson and Marie Kurelić, did not appear in court, with the second defendant represented by Mr. R. K. F. Davis. The plaintiff, Mark Gregory Clay, appeared in person without legal representation. The central issue before the court was whether the plaintiff should be granted leave to amend his statement of claim to include further particulars aimed at casting doubt on the testator's sound mind, memory, and understanding at the time of executing the codicil. The court considered whether the proposed amendments were properly pleaded and relevant to the case.

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.

Orders