Thynne v Jevny Pty Ltd (No 2) - [2023] NSWSC 1465

Supreme Court

New South Wales

Medium Neutral Citation: Thynne v Jevny Pty Ltd (No 2) [2023] NSWSC 1465
Hearing dates: 6 November 2023
Date of orders: 30 November 2023
Decision date: 30 November 2023
Jurisdiction: Equity
Before: Robb J
Decision:
See [66]

Catchwords:
CIVIL PROCEDURE – originating process – amendment – where plaintiff seeks leave to amend statement of claim – where substantive proceedings concern claim by plaintiff that second defendant used real property she inherited in a manner inconsistent with a memorandum of wishes she signed with the deceased testator – where the Court of Appeal has determined that plaintiff does not have a present beneficial interest in the real property – where plaintiff seeks to amend statement of claim in order to accommodate the effect of the reasons of the Court of Appeal – whether plaintiff’s draft amended statement of claim cures the deficiencies in the existing statement of claim – held that the proposed amendments do not cure the substantive deficiencies in the plaintiff’s claim to have an existing beneficial interest in the real property – leave to amend statement of claim to be refused
CIVIL PROCEDURE – pleadings – particulars – summary dismissal – striking out – where second defendant seeks orders for the summary dismissal and striking out of the plaintiff’s prayers for relief and associated pleadings and particulars concerning her ownership and use of the real property – where said prayers for relief and associated pleadings and particulars depend on the existence of a present trust interest in favour of the plaintiff over part of the real property – held that such a trust interest does not automatically arise in equity – held that there is no basis for imposing such a trust interest – orders to be made summarily dismissing prayers for relief in the plaintiff’s statement of claim which depend on the existence of a present trust interest in favour of the plaintiff over the real property – orders to be made striking out allegations by the plaintiff regarding the real property and the plaintiff’s restatement of his entitlement to the relief claimed – leave to amend the pleadings and particulars struck out or summarily dismissed to be refused
CIVIL PROCEDURE – subpoenas – application to set aside – where second defendant seeks orders to set aside and ‘undo’ the effect of a subpoena issued to a bank at the instance of the plaintiff – application to set aside subpoena ultimately not pressed as the Court will make the summary dismissal order sought by the second defendant

Legislation Cited:
Real Property Act 1900 (NSW), s 74J
Trustee Act 1925 (NSW), ss 5, 70
Uniform Civil Procedure Rules 2005 (NSW), rr 13.4, 14.28, 33.4

Cases Cited:
Birmingham v Renfrew (1937) 57 CLR 666; [1937] HCA 52
Giumelli v Giumelli (1999) 196 CLR 101; [1999] HCA 10
Harry Bernard Thynne v Jevny Pty Limited [2022] NSWSC 1774
The Ampthill Peerage [1977] AC 547
Thynne v Sheringham [2023] NSWCA 181
Voges v Monaghan

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.

Keep reading for free

Create a free CaseChat account to read Thynne v Jevny Pty Ltd (No 2) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2023] NSWSC 1465
Decision Date: 30 November 2023

CaseChat Overview and Summary

The case of Thynne v Jevny Pty Ltd (No 2) involved a dispute concerning the real property inherited by the plaintiff from the deceased testator. The plaintiff sought leave to amend her statement of claim in light of the Court of Appeal's determination that she did not hold a present beneficial interest in the real property. The second defendant, in response, sought summary dismissal and striking out of specific prayers for relief and associated pleadings and particulars, which were contingent on the plaintiff having a present trust interest over part of the real property. Additionally, the second defendant applied to set aside a subpoena issued by the plaintiff to a bank, although this application was ultimately not pursued by the defendant.

The court was required to decide whether the plaintiff's proposed amendments to her statement of claim adequately addressed the deficiencies identified by the Court of Appeal. The court also needed to determine whether the plaintiff's claims for relief and associated pleadings and particulars, which relied on the existence of a present trust interest, could be maintained. Furthermore, the court had to consider the second defendant's application to set aside the subpoena issued by the plaintiff.

The court held that the proposed amendments to the statement of claim did not address the substantive deficiencies in the plaintiff's claim to have an existing beneficial interest in the real property. The court ruled that there was no basis for imposing a trust interest in equity and, therefore, denied the plaintiff leave to amend her statement of claim. Consequently, the court made orders summarily dismissing the prayers for relief that depended on the existence of a present trust interest. The court also struck out the plaintiff's allegations regarding the real property and her restatement of her entitlement to the relief claimed. Additionally, the court refused the plaintiff leave to amend the pleadings and particulars that were struck out or summarily dismissed. The application to set aside the subpoena was not pursued by the second defendant, and thus, the court did not need to rule on it.

In conclusion, the court refused the plaintiff leave to amend her statement of claim, summarily dismissed certain prayers for relief, and struck out specific allegations and restatements regarding the real property. The application to set aside the subpoena was not proceeded with by the second defendant.

Orders