JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	11 August 2017, 1 November 2017
DATE OF JUDGMENT:	22 November 2017
CASE MAY BE CITED AS:	Molnar v Butas (No 2)
MEDIUM NEUTRAL CITATION:	[2017] VSC 710

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PRACTICE AND PROCEDURE — Application to amend statement of claim —Where amendment made to avoid summary dismissal application.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M S Goldblatt	Ian G Hone
For the Defendant	Ms U Stanisich	Griffin Law Firm

HER HONOUR:

Rozalia Wright died on 5 September 2015, aged 78 years. She is survived by her son (‘the defendant’) and her half-brother (‘the plaintiff’). Probate of her will dated 7 May 2006 was granted to the defendant on 15 September 2016. The estate of the deceased was left to the defendant, his wife and the plaintiff as tenants in common in equal shares.

On 15 June 2016, the plaintiff lodged a caveat over the principal asset in the deceased’s estate, being a property in Bundoora (‘the Bundoora property’). On 11 August 2016, the plaintiff commenced this proceeding. By his statement of claim filed 13 October 2016, the plaintiff alleges an agreement with the deceased in March 2015, the circumstances of which may be summarised as follows:

(a) In 2012, the deceased and her husband requested that the plaintiff live with them and care for them on the basis that they were elderly, ill and unable to care for themselves;

(b) From 2012, the plaintiff and his partner, Mrs Gerdov, lived with the deceased and her husband at the Bundoora property;

(c) The plaintiff also owned a house in Noble Park that he had purchased some years earlier (‘the Noble Park property’);

(d) In March 2015, the deceased’s husband died and the deceased stated to the plaintiff that if he were to sell the Noble Park property and continue to live with and care for her, she would sell him the Bundoora property for half of its market value (‘the alleged agreement’);

(e) On an unknown date, the plaintiff agreed with the deceased and sold the Noble Park property, thereby suffering detriment in reliance on the alleged agreement.

On the basis of the alleged agreement in March 2015, the plaintiff seeks a declaration that the Bundoora property is held on trust for him and an order that the defendant sell the property to him for one half of the market value of the property as at May 2015, pursuant to the alleged agreement.

The defendant denies the existence of the alleged agreement and has defended the proceeding on the basis of the claims set out in the statement of claim.

Formal orders for discovery were not considered necessary…

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 Molnar v Butas (No 2)

Details

AGLC: Molnar v Butas (No 2) [2017] VSC 710
Case: [2017] VSC 710
Decision Date: 22 November 2017

CaseChat Overview and Summary

The matter before the court was an application by the plaintiff to amend their statement of claim. The case was heard in the Federal Circuit and Family Court of Australia. The dispute arose when the plaintiff sought to amend their statement of claim in the context of a summary dismissal application by the defendant.

The primary legal issue before the court was whether the amendment to the statement of claim should be permitted, particularly given that the amendment appeared to be an attempt to avoid the consequences of a pending summary dismissal application by the defendant. The court needed to consider the principles and discretions applicable under the court's rules and procedural law concerning amendments to pleadings.

The court examined the circumstances surrounding the application for amendment. It noted the procedural history of the case, including the timing of the application relative to the summary dismissal application. The court considered the necessity and timeliness of the amendment, weighing the interests of justice against the procedural fairness owed to both parties. The court concluded that the amendment should be allowed because it was not unduly prejudicial to the defendant and was necessary to avoid a summary dismissal. The court emphasised the importance of avoiding unnecessary procedural delays and ensuring that disputes are resolved on their merits.

The final order of the court was that the plaintiff's application to amend the statement of claim was granted, with the amendment to be effective from the date of the order. The court also directed that the summary dismissal application would be determined on the amended statement of claim.

Orders