Drew v Drew - [2021] VSC 99

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
PROPERTY LIST

S CI 2017 04815

JEANETTE DREW	Plaintiff
v
VICTOR DREW	First Defendant
HELEN DREW (also known as HELEN KARRAS)	Second Defendant

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JUDGE:	Efthim AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	6 November 2020 and 2 December 2020
DATE OF JUDGMENT:	1 February 2021
CASE MAY BE CITED AS:	Drew v Drew & Anor
MEDIUM NEUTRAL CITATION:	[2021] VSC 99

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PROPERTY – Rules 36.01(1)(a) and 36.01(1)(b) of the Supreme Court (General Civil Procedure) Rules – Leave to amend defence and counterclaim – Assignment of equitable interest in property – Whether amended pleadings have ‘any real prospect of success’ where applicant’s rights already determined by court order – Res judicata – Assignment of equitable chose in action without notice by assignor to assignee.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff/First Defendant by Counterclaim	Mr J L Evans QC	Sinisgalli Foster Legal Pty Ltd
For the First and Second Defendants/Plaintiffs by Counterclaim	Mr M Bearman, with Mr S Fuller	Russell Kennedy
For the Third Defendant by counterclaim	No appearance	Pearce Webster Dugdales

HIS HONOUR:

The first defendant, Victor Drew (‘Victor’), has applied for leave to amend his existing defence and counterclaim dated 11 October 2018. Victor’s wife, the second defendant, Helen Drew (‘Helen’) has also applied to amend her existing defence dated 11 October 2018. The defence filed by both defendants is almost in identical terms.

An application by summons filed on 4 November 2019 was previously made to amend the defences and counterclaim. That application was heard by Lansdowne AsJ on 25 November 2019. On 11 March 2020, Lansdowne AsJ delivered written reasons refusing Victor’s application to file the proposed amended defence and counterclaim. By orders made on 1 April 2020, Lansdowne AsJ made orders in respect of a further application by Victor and Helen to amend the pleadings.

On 14 July 2020, Victor and Helen served further iterations of their proposed amended defences and Victor’s amended counterclaim. After receipt of submissions from the plaintiff, Jeanette Drew (Victor’s sister), the defendants did not seek to file and serve their proposed amended defence. That application was dismissed with costs by me on 26 August 2020.

The current amended pleadings seek to plead a case based on an assignment by Georgia Drew and Leslie Drew (the parents of Victor and Jeannette) to Victor of their alleged equitable interests in a property at 1 Mangalore Street, Travancore (‘the Property’). It also pleads a claim sought to be made against the plaintiff for breach of fiduciary duty or breach of trust pursuant to her capacity as executor of the estate of Leslie Drew.

The pleadings of the assignments are based on two documents:

(a) a document dated 13 November 1988 by which Georgia and Leslie assigned their interests in the Property to Victor (‘the Transfer Agreement’); and

(b) a document dated 11 September 2017 by which Georgia states that she assigned all of her interest in the Property to…

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 Drew v Drew

Details

AGLC: Drew v Drew [2021] VSC 99
Case: [2021] VSC 99
Decision Date: 1 February 2021

CaseChat Overview and Summary

Drew v Drew involved a dispute between the parties over the assignment of an equitable interest in a property and the ability to amend pleadings in the Supreme Court. The applicant, seeking to amend their defence and counterclaim, argued for leave to add new claims related to the assignment of an equitable interest. The court was tasked with determining whether the amended pleadings had any real prospect of success, given that the applicant's rights had already been adjudicated in a prior court order. The matter also involved the application of the doctrine of res judicata, considering whether the assignment of an equitable chose in action without notice to the assignee could be pursued.

The court examined whether the proposed amendments would have a real prospect of success, considering the res judicata effect of the prior court order. It held that the doctrine of res judicata barred the applicant from re-litigating the issue of the assignment of the equitable interest. The court concluded that since the applicant's rights had already been determined by a final court order, there was no real prospect that the amended pleadings would succeed. Furthermore, the court noted that the assignment of an equitable chose in action without notice to the assignee did not provide a basis for the applicant to challenge the prior order.

As a result, the court denied the applicant leave to amend the defence and counterclaim. The court found that the doctrine of res judicata precluded the applicant from re-litigating the assignment of the equitable interest. The court held that the proposed amendments did not have a real prospect of success given the finality of the prior court order. The applicant was therefore not permitted to amend their pleadings to include the new claims related to the assignment.

The final orders of the court were that the applicant's application for leave to amend the defence and counterclaim was dismissed. The court confirmed the res judicata effect of the prior order and held that the applicant could not challenge the assignment of the equitable interest in the current proceedings. The applicant was also directed to pay the respondent's costs of the application.

Orders