JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	2 August 2021
DATE OF JUDGMENT:	8 April 2022
CASE MAY BE CITED AS:	Drew v Drew (No 2)
MEDIUM NEUTRAL CITATION:	[2022] VSC 177

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COURT PRACTICE AND PROCEDURE – Appeal from decision refusing leave to file and serve amendments to amended statement of defence and counterclaim – Proposed amendment to include case based on assignment of equitable interest in property – Whether amendment raised a case that has no real prospects of success – No real prospects of success – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M Bearman with Mr S Fuller	Russell Kennedy Lawyers
For the First Defendant	Mr J Evans QC	Sinisgalli Foster Legal
For the Estate of Leslie Drew	Mr J Nixon	Pearce Webster Dugdales

HER HONOUR:

By notice of appeal filed 12 March 2021, the first defendant and plaintiff by counterclaim, Victor Drew (‘Victor’) lodged an appeal from the decision of Associate Justice Efthim delivered 2 February 2021, refusing leave to Victor to file and serve certain proposed amendments to his amended statement of defence and counterclaim, and ords 1 and 9 of the orders made on 19 February 2021 giving effect to that decision.

Jeanette Drew (‘Jeanette’) is the plaintiff and first defendant by counterclaim and is Victor’s sister. She is the respondent in this appeal. Until its sale, Jeanette was the registered proprietor of a property at 1 Mangalore Street, Travancore (‘the property’).

Counsel for the estate of Leslie Drew appeared at the commencement of the appeal and was excused from any further appearance.

Jeanette commenced this proceeding alleging that Victor and the second defendant, Victor’s wife, Helen Drew (‘Helen’), wrongfully took possession of the property and made claims of trespass and nuisance in respect of the property. The property has now been sold and Jeanette seeks compensatory or restitutionary damages, alternatively, exemplary or aggravated damages.

On 21 March 2018 Victor filed a defence. Subsequently, on 11 October 2018 Victor filed an amended defence and counterclaim pursuant to orders of Matthews JR made 14 September 2018. Therein he claims that he had a beneficial interest in the property by way of constructive, alternatively, resulting trust. On 21 May 2019, Jeanette filed her reply and defence to Victor’s counterclaim.

Victor’s summons

By summons filed 4 November 2019, Victor sought to make amendments to his claims in respect to his alleged beneficial interest in the property. The amendments relevantly included a case based on an assignment by Victor and Jeanette’s parents, Georgia Drew (‘Georgia’) and Leslie Drew (‘Leslie’) to Victor of their alleged equitable interests in the property based upon a document dated 13 November 1988 (‘the 13 November 1988 document’).

The 13 November 1988 document provides:

THIS TRANSFER AGREEMENT is made the 13

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 (No 2)

Details

AGLC: Drew v Drew (No 2) [2022] VSC 177
Case: [2022] VSC 177
Decision Date: 8 April 2022

CaseChat Overview and Summary

Drew v Drew (No 2) involved a dispute between the parties over property rights, specifically an equitable interest in a property. The matter was before the court of appeal, which was considering an appeal against a decision to refuse leave to amend a statement of defence and counterclaim. The proposed amendment sought to include a case based on the assignment of an equitable interest in the property.

The central legal issue was whether the proposed amendment raised a case that had no real prospects of success. The court needed to determine if the amendment introduced a viable defence or counterclaim, or if it was merely an attempt to relitigate an issue that had already been decided. The court also had to consider whether the amendment would cause undue delay or prejudice to the other party.

The court of appeal held that the proposed amendment did not raise a case with any real prospects of success. It was found that the amendment was an attempt to relitigate an issue that had already been decided and that there was no evidence to support the claim of an equitable interest in the property. The court also found that allowing the amendment would cause undue delay and prejudice to the other party. Therefore, the appeal was dismissed, and the decision to refuse leave to amend was upheld.

No further orders were made by the court. The decision reinforces the principle that amendments to pleadings will only be allowed if they raise a case with real prospects of success and do not cause undue delay or prejudice.

Orders