Court of Appeal
Supreme Court
New South Wales
- Summary available
Medium Neutral Citation: Photios v Photios [2019] NSWCA 158 Hearing dates: 28 May 2019 Date of orders: 27 June 2019 Decision date: 27 June 2019 Before: Bell P at [1]
Gleeson JA at [99]
Leeming JA at [100]Decision: 1. Allow the appeal.
2. Grant leave to amend the amended statement of cross-claim in the form of the proposed further amended statement of cross-claim that was the subject of the notice of motion before Rees J, subject to the following conditions:
a. the Appellant pay the Respondent’s costs thrown away by the amendments;
b. to the extent that the Respondent needs to reinterview any of the witnesses from whom a witness statement or affidavit has already been obtained and filed, the Appellant pay the Respondent’s costs of that exercise and the preparation of any further evidence consequent upon it;
c. the Appellant consent to any application for expedition of the hearing of the trial
d. the Appellant give to the Court and to the Respondent the undertakings in the form appended to these reasons; and
e. the Appellant consent to any further mediation sought by the Respondent, whether before or after the Respondent has filed her evidence in response to the allegations contained in the further amended statement of cross-claim and the evidence of Dr Wijeratne.
3. Direct that the parties file submissions within 5 business days of these orders in relation to whether or not the Appellant should be required to pay the mediator’s costs of any further mediation as a condition of leave to amend.Catchwords: CIVIL PROCEDURE – refusal to allow amendment to challenge testamentary capacity on basis that amendment, if allowed, was doomed to fail – whether primary judge erred in concluding that claim was doomed to fail notwithstanding a finding that there was an arguable case of lack of testamentary capacity established – whether finding that proposed claim was doomed to fail was a discretionary decision or a finding of abuse of process – significance of unique public interest character of probate proceedings – meaning of “acquiescence” – absence of any real prejudice – appropriate conditions to be imposed on amendment
SUCCESSION – grant of probate in common form in respect of a will – application to amend cross-claim to challenge grant on basis of lack of testamentary capacity – no caveat lodged – application to amend made at a time when case ready to be allocated a hearing date – relevant considerations – importance to be placed on ascertainment of true intention of the testator – significance of unique public interest character of probate proceedings – reasonably arguable case that testator lacked testamentary capacity at relevant time – whether application, if granted, doomed to fail – whether challenge to testamentary capacity was an abuse of process in the circumstances – consideration of In re Goode (1890) 11 LR(NSW) (Eq) 281Legislation Cited: Civil Procedure Act 2005 (NSW), s 56
Trustee Act 1925 (NSW), ss…
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- AGLC
- Photios v Photios [2019] NSWCA 158
- Case
- [2019] NSWCA 158
- Decision Date
CaseChat Overview and Summary
The Court of Appeal was required to determine whether the primary judge erred in concluding that the proposed challenge to testamentary capacity was doomed to fail, notwithstanding the existence of an arguable case. It also had to consider whether this conclusion was a discretionary decision or a finding of abuse of process, and the significance of the unique public interest character of probate proceedings. Further issues included the meaning of "acquiescence" in this context, the absence of real prejudice to the respondent, and the appropriate conditions to be imposed on any grant of leave to amend.
The Court of Appeal reasoned that the primary judge's finding that the claim was doomed to fail was an error, particularly given the finding that there was an arguable case of lack of testamentary capacity. The Court emphasised the unique public interest character of probate proceedings, which prioritises the ascertainment of the true intention of the testator. It held that the primary judge had placed undue weight on the delay in bringing the application and the absence of a caveat, and had not given sufficient consideration to the arguable case of lack of capacity. The Court found that the challenge was not an abuse of process and that the respondent had not suffered any real prejudice.
The appeal was allowed. Leave was granted to amend the amended statement of cross-claim, subject to several conditions. These conditions included the appellant paying the respondent's costs thrown away by the amendments, costs associated with re-interviewing witnesses and preparing further evidence, and consenting to expedition of the trial and any further mediation sought by the respondent. The appellant was also required to provide specific undertakings to the Court and the respondent. The parties were directed to file submissions regarding the payment of mediator's costs for any further mediation.
Orders
Orders of the court
1. Allow the appeal.
2. Grant leave to amend the amended statement of cross-claim in the form of the proposed further amended statement of cross-claim that was the subject of the notice of motion before Rees J, subject to the following conditions:
a. the Appellant pay the Respondent’s costs thrown away by the amendments;
b. to the extent that the Respondent needs to reinterview any of the witnesses from whom a witness statement or affidavit has already been obtained and filed, the Appellant pay the Respondent’s costs of that exercise and the preparation of any further evidence consequent upon it;
c. the Appellant consent to any application for expedition of the hearing of the trial
d. the Appellant give to the Court and to the Respondent the undertakings in the form appended to these reasons; and
e. the Appellant consent to any further mediation sought by the Respondent, whether before or after the Respondent has filed her evidence in response to the allegations contained in the further amended statement of cross-claim and the evidence of Dr Wijeratne.
3. Direct that the parties file submissions within 5 business days of these orders in relation to whether or not the Appellant should be required to pay the mediator’s costs of any further mediation as a condition of leave to amend.
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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