Fay v Fay - [2022] VSC 103

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

TRUSTS, EQUITY AND PROBATE LIST

S ECI 2019 05939

JANE ELIZABETH FAY & ORS (according to the Schedule attached)	Plaintiffs
v
WILLIAM LUKE FAY & ORS (according to the Schedule attached)	Defendants

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JUDGE:	Irving AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	17 February 2022
DATE OF RULING:	4 March 2022
CASE MAY BE CITED AS:	Fay & Ors v Fay & Ors
MEDIUM NEUTRAL CITATION:	[2022] VSC 103

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PRACTICE AND PROCEDURE – Pleadings – Amendment –Application for leave to amend statement of claim – Relevance of stage of proceedings when amendment sought – Relevance of explanation for delay – Where defendants taken inactive role in proceedings – Whether explanation for delay pre condition to exercise of discretion – Application granted – Supreme Court (General Civil Procedure) Rules 2015, rr 36.01, 36.04 – Civil Procedure Act 2010, ss 6-9 – Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175, applied.

PRACTICE AND PROCEDURE – Pleadings – Application for further and better particulars of defence – Where particulars sought in relation to valuation factual assertions – Where particulars amount to request for evidence – Application dismissed – Supreme Court (General Civil Procedure) Rules 2015, r 13.11.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr M Gronow, one of Her Majesty’s counsel	Gadens Lawyers
For the First Defendant and Second Defendant	Mr D Clough of counsel	Cinque Oakley Bryant Lawyers
For the Third Defendant	Mr J Evans, one of Her Majesty’s counsel, and Mr A Purton of counsel	Madgwicks

HIS HONOUR:

Introduction

This ruling concerns two applications brought by the plaintiffs. The first is an application for leave to file an amended statement of claim[1]. The second is an application for an order requiring the third defendant to file and serve better particulars of its defence dated 28 August 2020.
[1]The plaintiffs’ statement of claim was filed 13 March 2020 and the amended statement of claim was filed 5 August 2020. The plaintiffs, by the summons filed 26 October 2021, seek leave to file an amended statement of claim in the terms as provided to the defendants on 3 September 2021. To avoid confusion, I have referred to the amended statement of claim the subject of the plaintiffs’ application for leave as the ‘further amended statement of claim’.

For the reasons that follow, I have decided the plaintiffs should be granted leave to file a further amended statement of claim in the form provided to the defendants on 3 September 2021 but the plaintiffs’ application for an order that the third defendant provide further and better particulars of defence should be dismissed.

Background

It is necessary to consider the plaintiffs’ applications in the context of the dispute between the parties and the procedural history of this matter, including the evolution of the pleadings.

Eric Parrington Fay (EP) and his wife Zillah Fay (Zillah)…

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 Fay v Fay

Details

AGLC: Fay v Fay [2022] VSC 103
Case: [2022] VSC 103
Decision Date: 4 March 2022

CaseChat Overview and Summary

In the matter of Fay v Fay, the applicant sought leave to amend the statement of claim in the Supreme Court of Victoria. The dispute involved property and financial matters between the parties. The court was required to decide whether to allow the applicant to amend the statement of claim, despite the defendants' inactive role in the proceedings and the applicant's delay in seeking the amendment.

The court considered the principles of leave to amend pleadings as set out in Aon Risk Services Australia Ltd v Australian National University. It found that the stage of proceedings and the explanation for the delay were relevant factors, but not preconditions to the exercise of discretion. The court was satisfied that the applicant had provided a reasonable explanation for the delay and that the amendment would not prejudice the defendants. The court granted the application for leave to amend.

The applicant also sought further and better particulars of the defendants' defence, in relation to valuation factual assertions. The court found that the particulars amounted to a request for evidence, rather than clarification of the defence. The court dismissed the application, pursuant to rule 13.11 of the Supreme Court (General Civil Procedure) Rules 2015.

Orders