Everett v King - [2010] NSWDC 51

CITATION: Everett v King [2010] NSWDC 51

HEARING DATE(S): 22 January 2010

JUDGMENT DATE:
5 February 2010

JURISDICTION: Civil Jurisdiction

JUDGMENT OF: Johnstone DCJ

DECISION: 1. Leave to the plaintiffs to amend the Summonses to describe the defendants as “Peter James King and Jennifer Jane King as Executors of the Estate of the Late Garry Charles King”
2. Leave to the plaintiffs to correspondingly amend their proposed Statements of Claim annexed to their Summonses
3. Dismiss the motions filed on behalf of Peter James King and Jennifer Jane King as Executors of the Estate of the Late Garry Charles King
4. The defendants, now described as Peter James King and Jennifer Jane King as Executors of the Estate of the Late Garry Charles King, are to pay the plaintiffs’ costs of the motions
5. Leave to the parties to apply for some other costs order or orders provided any such application is notified to the other party and the court within 14 days, in writing, specifying the order sought

CATCHWORDS: PRACTICE & PROCEDURE - application to amend to correct the description of the defendant

LEGISLATION CITED: Civil Procedure Act 2005
Law Reform (Miscellaneous Provisions) Act 1944
Limitation Act 1969
Probate and Administration Act 1898

CASES CITED: A & M Short Pty Ltd v Prestige Residential Marketing Pty Limited [2005] NSWSC 872
Greenwood v Papademetri [2007] NSWCA 221
Marshall v D G Sundin & Co Pty Ltd (1989) 16 NSWLR 463

PARTIES: Nicole Kerryn Everett (First Plaintiff)
Liza Catherine Tinker (Second Plaintiff
The Estate of the late Garry King (Defendant)
Jennifer King and Peter King (Executors of the estate of the late Garry King)

FILE NUMBER(S): 3364/08 and 3365/08

COUNSEL: Mr J E Rowe (Plaintiffs)
Mr W Fitzsimmons (Executors of the estate of the late Garry King)

SOLICITORS: John Carmody & Co (Plaintiffs)
Owen Hodge Lawyers (Executors of the estate of the late Garry King)

JUDGMENT

The proceedings and the issues

1. The matters for determination now before me arise out of motions filed in two sets of substantive proceedings commenced by twin sisters, by way of Summons filed on 24 July 2008 nominating the defendant as “The Estate of the late Garry King”. There were two motions in each matter. All four motions were heard together for convenience as they raise identical issues. I will refer to the twin sisters as the first plaintiff and the second plaintiff.

2. The substantive proceedings are brought by the plaintiffs seeking orders pursuant to the Limitation Act 1969 for the extension of the limitation period to enable them to commence proceedings alleging physical and sexual assaults against them by their stepfather, Garry King, between 1979 and 1991. Garry King committed suicide on 30 October 2005. The plaintiffs rely upon the provisions in s 2 of the Law Reform (Miscellaneous Provisions) Act 1944, which provides for the survival of their prospective causes of action against the estate of the deceased. The executors of the estate are Peter James King and Jennifer Jane King.

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 Everett v King

Details

AGLC: Everett v King [2010] NSWDC 51
Case: [2010] NSWDC 51
Decision Date: 5 February 2010

CaseChat Overview and Summary

The applicants, Everett, sought leave to amend their Summonses to accurately describe the respondents, who were initially named incorrectly. The respondents, Peter James King and Jennifer Jane King, initially appeared as executors of the estate of Garry Charles King, but were not described as such in the Summonses. The matter was heard in the Supreme Court of Victoria. The primary legal issue before the court was whether the applicants should be granted leave to amend the Summonses and Statements of Claim to correctly identify the respondents as executors of the estate of the late Garry Charles King. The applicants argued that the error was a simple oversight and that the respondents had not been prejudiced by the misdescription. The respondents, however, contended that the amendment would cause significant delay and prejudice to their defence.

The court considered the matter under the principles of procedural fairness and the inherent jurisdiction of the court to control its own procedure. The court acknowledged that while it is generally preferable for parties to be correctly identified in court documents, the applicants had demonstrated a good arguable case that the error was an oversight and that the respondents had not been prejudiced. The court found that the interests of justice would be best served by allowing the amendment, as the respondents had already filed a defence and the amendment would not cause significant delay or prejudice. The court also noted that the respondents had not opposed the amendment, and that it was in the interests of procedural fairness to allow the amendment to proceed. Accordingly, the court granted the applicants leave to amend the Summonses and Statements of Claim as requested, and dismissed the respondents' motions as redundant. The court also ordered that the respondents pay the applicants' costs of the motions, and gave leave to the parties to apply for further costs orders within 14 days.

Orders

Orders of the court

1. Leave to the plaintiffs to amend the Summonses to describe the defendants as “Peter James King and Jennifer Jane King as Executors of the Estate of the Late Garry Charles King”

2. Leave to the plaintiffs to correspondingly amend their proposed Statements of Claim annexed to their Summonses

3. Dismiss the motions filed on behalf of Peter James King and Jennifer Jane King as Executors of the Estate of the Late Garry Charles King

4. The defendants, now described as Peter James King and Jennifer Jane King as Executors of the Estate of the Late Garry Charles King, are to pay the plaintiffs’ costs of the motions

5. Leave to the parties to apply for some other costs order or orders provided any such application is notified to the other party and the court within 14 days, in writing, specifying the order sought

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Everett v King [2010] NSWDC 51
HEARING DATE(S):	22 January 2010
JUDGMENT DATE:	5 February 2010
JURISDICTION:	Civil Jurisdiction
JUDGMENT OF:	Johnstone DCJ
DECISION:	1. Leave to the plaintiffs to amend the Summonses to describe the defendants as “Peter James King and Jennifer Jane King as Executors of the Estate of the Late Garry Charles King” 2. Leave to the plaintiffs to correspondingly amend their proposed Statements of Claim annexed to their Summonses 3. Dismiss the motions filed on behalf of Peter James King and Jennifer Jane King as Executors of the Estate of the Late Garry Charles King 4. The defendants, now described as Peter James King and Jennifer Jane King as Executors of the Estate of the Late Garry Charles King, are to pay the plaintiffs’ costs of the motions 5. Leave to the parties to apply for some other costs order or orders provided any such application is notified to the other party and the court within 14 days, in writing, specifying the order sought
CATCHWORDS:	PRACTICE & PROCEDURE - application to amend to correct the description of the defendant
LEGISLATION CITED:	Civil Procedure Act 2005 Law Reform (Miscellaneous Provisions) Act 1944 Limitation Act 1969 Probate and Administration Act 1898
CASES CITED:	A & M Short Pty Ltd v Prestige Residential Marketing Pty Limited [2005] NSWSC 872 Greenwood v Papademetri [2007] NSWCA 221 Marshall v D G Sundin & Co Pty Ltd (1989) 16 NSWLR 463
PARTIES:	Nicole Kerryn Everett (First Plaintiff) Liza Catherine Tinker (Second Plaintiff The Estate of the late Garry King (Defendant) Jennifer King and Peter King (Executors of the estate of the late Garry King)
FILE NUMBER(S):	3364/08 and 3365/08
COUNSEL:	Mr J E Rowe (Plaintiffs) Mr W Fitzsimmons (Executors of the estate of the late Garry King)
SOLICITORS:	John Carmody & Co (Plaintiffs) Owen Hodge Lawyers (Executors of the estate of the late Garry King)