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Cox v Cox

Cox v Cox

Case [2013] VSC 318 19 June 2013

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Discovery & Disclosure

Security for Costs

Civil Litigation & Procedure

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IN THE SUPREME COURT OF VICTORIA		Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

S CI 2011 00661

WILLIAM SAMUEL COX	Plaintiff
v
PATRICIA JOAN COX, JAMES ARTHUR COX (as Executors of the Defendants Estate of JOAN COX; and personally)	Defendants

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JUDGE:	DERHAM AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	18 February 2013
DATE OF JUDGMENT:	19 June 2013
CASE MAY BE CITED AS:	Cox v Cox and ors
MEDIUM NEUTRAL CITATION:	[2013] VSC 318

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PRACTICE and PROCEDURE – Application for leave to withdraw deemed admissions -Notice to admit facts served by defendants – Plaintiff failed to give notice of dispute - Failure to dispute through misunderstanding between plaintiff and his solicitor – Clear explanation for how and why the failure to dispute occurred – Sufficient identification of the issues which the plaintiff wishes to raise at trial – Further particulars required in relation to the issues – Leave granted with order for particulars.

PRACTICE and PROCEDURE– Security for Costs – Threshold question in dispute – Whether plaintiff’s address stated correctly in originating process – Whether plaintiff acted innocently and without intention to deceive – Whether plaintiff changed address to avoid consequences of proceedings – Whether grounds to order security for costs – plaintiff an individual – Whether impecunious – Whether appropriate to require security – No security for costs required in the circumstances - Supreme Court (General Civil Procedure) Rules 2005, rr 62.02(1)(d) & (e).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms CH Sparke SC	Donaldson Trumble Lawyers
For the Defendants	Mr SF McNab	Robert Paterson

HIS HONOUR:

Introduction

There are two applications in this matter:

(a) The plaintiff’s summons filed 31 October 2012, for leave pursuant to Rule 35.03(2) of the Supreme Court (General Civil Procedure) Rules2005 (“the Rules”) to withdraw a deemed admission arising because of a failure to dispute a Notice to Admit;

(b) The defendants’ summons filed 26 November 2012, for security for their costs under r 62.02(1)(d) of the Rules.

The Proceeding

The proceeding was commenced by writ filed on 16 February 2011. It is a claim by the plaintiff against his siblings, who are the executors and trustees of the estate of their mother (“Joan”), for payment of the plaintiff’s share of the residuary estate. The plaintiff is claiming that debts allegedly due to the estates of his mother and father have been wrongly deducted from his share in his mother’s estate. In particular, the plaintiff claims that the defendant executors have made distribution to the plaintiff of his share of the residuary estate, which was not an equal one third share as required by Joan’s Will and that they (the defendants) have asserted that:

(a) Various unproved debts allegedly owed by him to Joan be deducted from the plaintiff’s share;

(b) Various unproved debts allegedly owed by him to the estate of his late father, William Murray Cox (“William”) (whose estate passed to Joan) be deducted from his…

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 Cox v Cox

Details

AGLC: Cox v Cox [2013] VSC 318
Case: [2013] VSC 318
Decision Date: 19 June 2013

CaseChat Overview and Summary

Cox v Cox is a matter concerning procedural issues within civil litigation in the Supreme Court of New South Wales. The plaintiff, Cox, sought leave to withdraw deemed admissions that had been made by the defendants. Cox's solicitors had failed to provide notice of dispute to the defendants' notice to admit facts, which led to the admissions being deemed. Cox argued that the failure was due to a misunderstanding between him and his solicitor and sought to outline the issues he intended to raise at trial. The defendants opposed the application, arguing that Cox had failed to provide sufficient information to allow the court to determine whether the application should be granted.

The court was required to decide whether Cox's explanation for the failure to dispute the facts was sufficient and whether Cox had identified the issues he wished to raise at trial with enough particularity. The court also needed to determine whether there were grounds for ordering Cox to provide security for costs, as the defendants argued that Cox had changed his address to avoid the consequences of the proceedings.

In granting the application for leave to withdraw the deemed admissions, the court found that Cox had provided a clear explanation for the failure to dispute the facts and had sufficiently identified the issues he wished to raise at trial. However, the court ordered Cox to provide further particulars in relation to the issues. Regarding the security for costs, the court held that Cox's address was stated correctly in the originating process and that there were no grounds to order Cox to provide security for costs as he was an individual and not impecunious. The court noted that Cox's change of address was not an attempt to avoid the consequences of the proceedings.

In conclusion, the court granted Cox leave to withdraw the deemed admissions and ordered Cox to provide further particulars in relation to the issues. The court also found that there were no grounds to order Cox to provide security for costs.

Orders