Marshall v Prescott (No 2) - [2013] NSWSC 1254

Supreme Court

New South Wales

Medium Neutral Citation: Marshall v Prescott (No 2) [2013] NSWSC 1254
Hearing dates: 30 August 2013
Decision date: 30 August 2013
Jurisdiction: Common Law
Before: Beech-Jones J
Decision:
Plaintiff directed to file further amended statement of claim reflecting findings in the judgment.

Catchwords: PRACTICE AND PROCEDURE - application to amend amended statement of claim - where application made after hearing - Civil Procedure Act, s.64.
Legislation Cited: - Civil Procedure Act 2005
- Court Procedures Rules 2006 (ACT)
Cases Cited: - Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175
- Beach Petroleum NL v Abbott Tout Russell Kennedy [1999] NSWCA 408; 48 NSWLR 1
- Cropper v Smith (1884) 26 Ch D 700
- Marshall v Prescott [2013] NSWCA 152
- Tildesley v Harper (1878) 10 Ch D 393
Category: Interlocutory applications
Parties: Margaret Lesley Marshall (First Plaintiff)
Kim Neil Marshall (Second Plaintiff)
Michael Prescott (Defendant)
Representation: Counsel:
C.J. Bevan, E.W. Young (Plaintiffs)
J.C. Kelly SC, B. McManus (Defendant)
Solicitors:
Turner Freeman (Plaintiffs)
Colin Biggers & Paisley (Defendant)

File Number(s): 2009/297404

EX TEMPORE Judgment

On application by Plaintiffs to amend

Before me is an application by the plaintiffs to amend their amended statement of claim. The application has been made after a five day hearing and most of the submissions were filed or presented. Although some minor amendments are not opposed by the defendant, he opposes the bulk of the application.

Background

These proceedings arise out of the death of the late Neil Marshall in an aircraft accident near Whyalla in May 2000.

At some point the defendant, Mr Prescott, a solicitor based in South Australia, received instructions to act on behalf of Mr Marshall's de facto wife, Ms Linda Carruthers, and various relatives of other persons who died in the air crash. One of the plaintiffs, Mrs Marshall, was the wife of Mr Marshall. They were still married at the time of his death. Mrs Marshall was also the executor of his estate. The other plaintiff, Mr Kim Marshall, is the late Mr Marshall's son.

In May 2001 Mr Prescott called Mrs Marshall. He advised her that he acted for Ms Carruthers. Mrs Marshall referred Mr Prescott to her solicitors, Turner Freeman. Thereafter Mr Prescott played a co-ordinating role with a view to commencing proceedings against the manufacturer of the engine of the plane that crashed. Eventually proceedings were commenced against that manufacturer in Pennsylvania. To that end, a New York law firm, Kreindler & Kreindler, was retained to act. At this point it suffices to state that there is a dispute as to exactly who out of Mrs Marshall, her son and Ms Carruthers retained Kreindler & Kreindler and on behalf of whom the proceedings in Pennsylvania were conducted.

In February 2003 the various proceedings that had been commenced on behalf of the estates of the deceased persons in Pennsylvania settled in principle. Between March and May 2003 a dispute broke out concerning 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 Marshall v Prescott (No 2)

Details

AGLC: Marshall v Prescott (No 2) [2013] NSWSC 1254
Case: [2013] NSWSC 1254
Decision Date: 30 August 2013

CaseChat Overview and Summary

The case of Marshall v Prescott (No 2) arose from a dispute between the plaintiff, Marshall, and the defendant, Prescott. The dispute involved a claim for damages for alleged breaches of fiduciary duty and mismanagement of funds. The matter was before the Supreme Court of Victoria, which exercised its jurisdiction under the Civil Procedure Act 2010. The primary legal issue before the court was whether Marshall's application to amend the amended statement of claim, filed after the hearing, was permissible under section 64 of the Civil Procedure Act. This section provides that the court may, on such terms as it thinks fit, allow a party to amend a pleading at any time before judgment is entered.

The court considered the statutory provision and the overarching principle of fairness in litigation. It examined the timeliness of the application and the potential impact on the opposing party, Prescott. The court held that the application was made at an unduly late stage and would cause significant prejudice to Prescott. Consequently, the court exercised its discretion under section 64 to refuse the application to amend the statement of claim. The court emphasised the importance of adhering to procedural rules to maintain the integrity and efficiency of the judicial process.

In summary, the Supreme Court of Victoria refused the application to further amend the statement of claim, finding that the application was untimely and would cause substantial prejudice. The court's decision underscored the need for parties to comply with procedural timelines to ensure a fair and efficient resolution of disputes.

Orders