Molnar v Butas (No 5) - [2018] VSC 166

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY & PROBATE LIST

S CI 2016 03185

IN THE MATTER of the Estate of ROZALIA WRIGHT, deceased

ANDREAS MOLNAR	Plaintiff
v
ZOLTAN BUTAS (in his capacity as the Executor of the Estate of Rozalia Wright, deceased)	Defendant

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	16 March 2018
DATE OF JUDGMENT:	16 April 2018
CASE MAY BE CITED AS:	Molnar v Butas (No 5)
MEDIUM NEUTRAL CITATION:	[2018] VSC 166

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PRACTICE AND PROCEDURE — Plaintiff’s failure to comply with order to file and serve proposed amended statement of claim — Plaintiff’s inordinate delay and no proper explanation for failure — Where defendant made oral application for a self-executing order — Further directions made for filing of proposed amended statement of claim.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ian G Hone
For the Defendant	Mr B Carew	Griffin Law Firm

HER HONOUR:

Background

Rozalia Wright died on 5 September 2015. 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.

The plaintiff issued this proceeding on 11 August 2016, following the lodging of a caveat on 15 June 2016 over the principal asset in the deceased’s estate, a property in Bundoora. The plaintiff claimed a constructive trust over the Bundoora property.

By summons issued on 18 September 2017, the plaintiff made an application to amend his statement of claim. The plaintiff’s proposed amended statement of claim was exhibited to an affidavit of his solicitor, Mr Hone, sworn 18 September 2017. The proposed amendments in the document were not adequately marked to reflect all the amendments. On 22 November 2017, the Court delivered reasons in respect of this application[1] and made orders that by 13 December 2017, the plaintiff file and serve an amended statement of claim substantially in the form of exhibit ‘IGH-1’ to the affidavit of Mr Hone sworn 18 September 2017 and that each amendment be marked to distinguish it from the original statement of claim.[2]
[1]Molnar v Butas (No 2) [2017] VSC 710 (22 November 2017).
[2]Molnar v Butas (No 2) [2017] VSC 710 (22 November 2017) [22].

The plaintiff’s application to amend the statement of claim was made more than a year after the proceeding was commenced. In essence, the plaintiff’s amendment is a new claim. The substance of the plaintiff’s amended statement of claim makes significant alterations to the material facts alleged by the plaintiff and alters the plaintiff’s detriment claim. The date and the terms of the alleged agreement are different, as are the parties to the alleged agreement, which are now said to include the plaintiff’s wife and the deceased’s husband. These amendments did not seem to accord with the facts in the plaintiff’s two affidavits.

The reasons delivered on 22 November 2017 set…

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 5)

Details

AGLC: Molnar v Butas (No 5) [2018] VSC 166
Case: [2018] VSC 166
Decision Date: 16 April 2018

CaseChat Overview and Summary

Molnar v Butas (No 5) involved a dispute between the plaintiff, Molnar, and the defendant, Butas. The plaintiff had failed to comply with a prior court order to file and serve a proposed amended statement of claim. This failure was accompanied by an inordinate delay and no proper explanation for the non-compliance. The defendant subsequently made an oral application for a self-executing order, seeking to enforce the earlier court direction.

The court had to determine whether the plaintiff's failure to adhere to the order, coupled with the significant delay and lack of justification, warranted the enforcement of the order through the defendant's application. The central legal issue was whether the court should grant the self-executing order requested by the defendant, compelling the plaintiff to file and serve the proposed amended statement of claim as previously directed.

The court considered the plaintiff's history of non-compliance and the lack of a satisfactory explanation for the delay. It found that the plaintiff's conduct warranted the enforcement of the order. The court was satisfied that the defendant's application was justified and granted the self-executing order. Additionally, the court made further directions for the filing of the proposed amended statement of claim, specifying a new deadline for compliance.

Orders