Davies v Davies & Anor (No 1)

The proceeding in Davies v Davies & Anor (No 1) involved an application for leave to withdraw an admission regarding the disposition of certain assets under a will. The dispute centered on whether specific items, including dinghies, a jet boat, and a fishing trawler named Ajax, should pass to Neville’s estate as a gift or form part of the residue of the deceased’s estate. The court had to determine the proper construction of the will clauses related to these assets. Prior to the trial, the parties agreed that the dinghies, jet boat, and Ajax would pass to Neville, leaving only the disposition of a commercial fishing boat licence in contention.

The legal issues before the court included whether the second respondents could withdraw the earlier admission about the assets and whether they could present additional evidence regarding the commercial viability of the Ajax and the use of the fishing licence. The court examined the submissions and affidavits presented, finding that the second respondents’ arguments were factually incorrect and misstated the legal issue. The court concluded that the application for leave to withdraw the admission was without merit and that the application to adduce additional evidence was misconceived and prejudicial.

The court refused to grant leave to withdraw the admission, emphasizing that the trial had proceeded on the basis of the admission. Allowing the withdrawal would result in further delay and costs. The court also dismissed the application to adduce additional evidence, noting that it would have diminished the estate’s residue to the detriment of all beneficiaries. Costs were awarded to the applicant on an indemnity basis, and Michael Davies was not entitled to an indemnity from the deceased’s estate for those costs or his own costs of the application. The court held that the second respondents’ conduct fell below the expected standard for legally represented parties.