Tyree v Ward - [2016] NSWSC 135

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Tyree v Ward & Ors [2016] NSWSC 135
Hearing dates: Friday, 5 February 2016
Decision date: 29 February 2016
Jurisdiction: Equity
Before: White J
Decision:
Refer to para [68] of judgment

Catchwords: PRACTICE AND PROCEDURE — application for leave to further amend statement of claim — application to dismiss proceedings — dispute concerning a will and various other agreements and representations — numerous previous attempts to identify a cause of action unsuccessful — no arguable cause of action identified — no arguable breach of agreements relied on — leave to further amend statement of claim refused — proceedings dismissed save as to claim under the Succession Act
Legislation Cited: Fair Trading Act 1987 (NSW)
Succession Act 2006 (NSW)
Cases Cited: Bajramovic v Calubaquib [2015] NSWCA 139
Beswick v Beswick [1968] AC 58
Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44
Coulls v Bagot’s Executor and Trustee Co Ltd (1967) 119 CLR 460
Tyree v Ward [2015] NSWCA 296
Category: Procedural and other rulings
Parties: Christopher Tyree (Plaintiff)
David William Ward (1st Defendant)
John Lucas Ramos (2nd Defendant)
Peter Lyndon Tyree (3rd Defendant)
Robyn Joy Fennell (4th Defendant)
David Burnett McNeil (5th Defendant)
Representation:
Counsel:
In person (Plaintiff)
A P Cheshire SC (Defendant)
Solicitors:
N/A
McLachlan Thorpe Partners (Defendants)

File Number(s): 2014/312902

Judgment

HIS HONOUR: This is an application by the plaintiff, Mr Christopher Tyree, primarily seeking leave to amend a statement of claim. The defendants move on their notice of motion filed on 19 November 2015 that save in so far as the proceedings concern a claim by the plaintiff for further provision out of the estate of the late Sir William Tyree, the proceedings be dismissed.
Sir William Tyree died on 25 October 2013. He left three children, namely, the plaintiff, Christopher Tyree, the fourth defendant, Robyn Fennell, and the fifth defendant, Peter Tyree. Each of Christopher, Robyn and Peter has children. The first defendant, David William Ward, the second defendant, John Ramos, the third defendant, David McNeil, and the fourth defendant, Robyn Fennell, are the executors of Sir William’s estate. Probate has been granted to them in respect of a will dated 15 May 2013 and a codicil dated 18 September 2013.
A statement of claim was filed on 24 October 2014 that named Christopher Tyree as the first plaintiff and five of his children as the second to sixth plaintiffs. Christopher Tyree sought a declaration that at the date of his death Sir William held the whole of his estate upon a constructive trust to ensure that the benefit which was to flow to Christopher Tyree and his children from the assets forming part of Sir William’s personal estate as well as from the assets forming part of the “AW Tyree Family Trust” and the “Sutherland Park Trust” would be no less than the benefits which were to flow to Robyn Fennell and her children, and the benefits which were to flow to…

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 Tyree v Ward

Details

AGLC: Tyree v Ward [2016] NSWSC 135
Case: [2016] NSWSC 135
Decision Date: 29 February 2016

CaseChat Overview and Summary

The applicants, Tyree, sought leave to further amend their statement of claim in a case against Ward. The applicants sought to amend the statement of claim for the third time, following the dismissal of their claims as failing to identify an arguable cause of action on two previous occasions. The dispute centred around a will and various other agreements and representations. Ward applied to dismiss the proceedings, arguing that the applicants had made numerous attempts to identify a cause of action but had been unsuccessful.

The court needed to decide whether the applicants had an arguable cause of action that could withstand a motion to dismiss, and whether there was an arguable breach of any of the agreements relied upon by the applicants. The applicants argued that they had identified an arguable cause of action in unjust enrichment and sought leave to amend their statement of claim for a third time. The court considered whether the applicants' claims were vexatious, an abuse of process, and whether the proposed amendments would be futile.

The court held that the applicants had not identified an arguable cause of action, and that any proposed amendments would be futile. The court noted that the applicants had made numerous attempts to identify a cause of action, but had been unsuccessful on each occasion. The court found that the applicants' claims were vexatious, and an abuse of process. The court refused the application for leave to further amend the statement of claim, and dismissed the proceedings save as to the claim under the Succession Act.

Orders