GLENDINNING -v- CUZENS [2011] WASC 247
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2011] WASC 247 | |
| Case No: | CIV:1182/2007 | 28 JUNE 2011 | |
| Coram: | ALLANSON J | 20/09/11 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | HEATHER GLENDINNING HARLEY STEWART CUZENS LESLEY FRANCES CUZENS FRANKLYN WILLIAM CUZENS |
Catchwords: | Practice and procedure Indorsement on writ of summons Leave to amend Turns on own facts |
Legislation: | Nil |
Case References: | Glendinning v Cuzens [2009] WASCA 21 Minogue v Human Rights and Equal Opportunity Commission [1999] FCA 85; (1999) 166 ALR 129 Rajski v Scitec Corp Pty Ltd (Unreported, NSWCA, 16 June 1986) Renowden v McMullin [1970] HCA 24; (1970) 123 CLR 584, 595 Stone James v Pioneer Concrete (WA) Pty Ltd [1985] WAR 233 Tobin v Dodd [2004] WASCA 288 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
HARLEY STEWART CUZENS
First Defendant
LESLEY FRANCES CUZENS
Second Defendant
FRANKLYN WILLIAM CUZENS
Third Defendant
Catchwords:
Practice and procedure - Indorsement on writ of summons - Leave to amend - Turns on own facts
Legislation:
Nil
(Page 2)
Result:
Application dismissed
Category: B
Representation:
Counsel:
Plaintiff : In person
First Defendant : In person
Second Defendant : Mr J C Vaughan
Third Defendant : Mr J C Vaughan
Solicitors:
Plaintiff : In person
First Defendant : In person
Second Defendant : MDS Legal
Third Defendant : MDS Legal
Case(s) referred to in judgment(s):
Glendinning v Cuzens [2009] WASCA 21
Minogue v Human Rights and Equal Opportunity Commission [1999] FCA 85; (1999) 166 ALR 129
Rajski v Scitec Corp Pty Ltd (Unreported, NSWCA, 16 June 1986)
Renowden v McMullin [1970] HCA 24; (1970) 123 CLR 584, 595
Stone James v Pioneer Concrete (WA) Pty Ltd [1985] WAR 233
Tobin v Dodd [2004] WASCA 288
(Page 3)
1 ALLANSON J: The plaintiff commenced these proceedings on 23 February 2007 by a writ of summons issued with an indorsement of claim. At that stage she was not legally represented, although she had some assistance in the preparation of the writ. The indorsement on the writ was as follows:
By reason of contributions made by the Plaintiff and declarations by the Defendants that she would benefit from such contributions the Plaintiff claims as against each of the Defendants a constructive trust in relation to her contributions and a consequential order for equitable compensation to be assessed.
The contributions made by the Plaintiff were both direct and indirect, financial and non-financial and were made in respect to:
(a) a farm in Dowerin owned by the Defendant's being Certificate of Title Volume 2053 Folio 712 and Volume 1676 Folio 488;
(b) a property at Baskerville being Certificate of Title Volume 1943 Folio 317;
(c) a farming partnership between…
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- Glendinning v Cuzens [2011] WASC 247
- Case
- [2011] WASC 247
- Decision Date
CaseChat Overview and Summary
The court considered the relevant principles governing leave to amend pleadings. It held that leave to amend a writ of summons should be granted if the amendment would not cause substantial injustice to the opposing party and if there was a sufficient basis for the new cause of action. The court emphasised that each case turned on its own facts and that the decision would depend on the specific circumstances. In this instance, the court found that allowing the amendment would not prejudice the defendant's ability to defend the case and that there was a plausible basis for the new cause of action. However, the court also noted that the plaintiff had not demonstrated that the amendment was necessary or that it could not have been reasonably discovered earlier. The court concluded that the application for leave to amend the writ of summons should be dismissed.
The court's reasoning underscored the importance of timely and appropriate pleadings in litigation. While the court recognised the need for flexibility in allowing amendments, it also emphasised the importance of avoiding unnecessary delays and ensuring that amendments do not unfairly prejudice the opposing party. In this case, the court was not satisfied that the plaintiff had met the required standard for leave to amend the writ of summons, and therefore, the application was dismissed.
Orders
Orders of the court
Application dismissed
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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