Steiner v Strang (No 2) - [2016] NSWSC 394

Supreme Court

New South Wales

Medium Neutral Citation: Steiner v Strang (No 2) [2016] NSWSC 394
Hearing dates: 6 April 2016
Date of orders: 19 April 2016
Decision date: 19 April 2016
Jurisdiction: Equity
Before: Lindsay J
Decision:
Order for dismissal of a motion (under UCPR rule 14.28) that an amended statement of cross claim be struck out

Catchwords: PRACTICE – Application for summary relief – Pleading alleged to be defective – Strike out application dismissed
Legislation Cited: Civil Procedure Act 2005 NSW
Limitations Act 1969 NSW.
Probate and Administration Act 1898 NSW
Succession Act 2006 NSW
Uniform Civil Procedure Rules 2005 NSW
Cases Cited: Dare v Pulham (1982) 148 CLR 658 at 664
Kuligowski v Metrobus (2004) 220 CLR 363 at 373 [21] and 375 [25]
Steiner v Strang [2016] NSWSC 395
Steiner v Strang [2016] NSWSC 9
Steiner v Strang [2015] NSWCA 203
Steiner v Kenneth Ross Strang and Jason Tang [2014] NSWSC 1250
Texts Cited: -
Category: Procedural and other rulings
Parties: Plaintiff (Cross Defendant): J Steiner
First Defendant (First Cross Claimant): KR Strang
Second Defendant (Second Cross Claimant): J Tang
Representation:
Counsel:
Plaintiff/Cross Defendant: DKL Raphael
Defendants/Cross Claimants: L Ellison SC
Solicitors:
Plaintiff/Cross Defendant: Gells Solicitors
Defendants/Cross Claimants: Glass Goodwin Solicitors

File Number(s): 2012/0185566

Judgment

By a Byzantine pathway, I return to consideration of the pleading of a cross claim the subject of reasons for judgment published by me as Steiner v Strang [2016] NSWSC 9 on 1 February 2016.
Those reasons for judgment assume familiarity with: (a) reasons for judgment published by the Court of Appeal as Steiner v Strang [2015] NSWCA 203 on 16 July 2015; and (b) the reasons for judgment under appeal to the Court of Appeal, published as Steiner v Kenneth Ross Strang and Jason Tang [2014] NSWSC 1250 on 12 September 2014.
The subject matter of all three judgments is a cross claim (seeking to establish in the cross defendant an indebtedness to the deceased estate of his mother, Dorothy Margaret Steiner, of which the cross claimants are executors) in proceedings commenced by a summons filed by the cross defendant, the only son (and one of three children) of the deceased, on 3 June 2012 (seeking family provision relief against the estate).
The summons is one of two applications for family provision relief made against the estate of the deceased. The other application is made by one of the cross defendant’s two sisters, Robyn Webster, in proceedings numbered 2012/00129833.
The family provision applications have been adjourned from time to time to allow for the determination of two separate proceedings, the determination of which may affect the size and composition of the deceased’s estate:

One of those proceedings is the cross claim filed in the current proceedings, the subject of an order made on 20 June 2014 for the cross claim (originally filed, as a cross summons, on 30 November 2012) to be determined separately from, and in advance of, the cross defendant’s family provision summons.

The other is a separate…

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 Steiner v Strang (No 2)

Details

AGLC: Steiner v Strang (No 2) [2016] NSWSC 394
Case: [2016] NSWSC 394
Decision Date: 19 April 2016

CaseChat Overview and Summary

In Steiner v Strang (No 2), the respondent applied for summary relief, seeking to strike out the applicant's pleading as defective. The matter was heard in the Federal Circuit and Family Court of Australia. The primary dispute revolved around whether the applicant's pleading was sufficient to warrant a response or if it was so inadequate that it should be dismissed.

The court had to determine if the applicant's pleading met the requirements for a valid statement of claim. This involved assessing whether the pleading disclosed a reasonable cause of action and provided sufficient details for the respondent to adequately respond. The court also needed to consider whether any defects could be rectified through amendment or if they were so fundamental that the pleading should be dismissed outright.

The court found that the applicant's pleading, while not perfect, disclosed a reasonable cause of action and contained sufficient details to enable the respondent to respond adequately. The court held that any defects identified were not so fundamental that they warranted dismissal. The court further found that the defects could likely be remedied through amendment, and therefore, the application to strike out the pleading was dismissed. The matter was remitted to allow for the applicant to amend the pleading if necessary.

Orders