Supreme Court
New South Wales
Medium Neutral Citation: Wilcox v Chapple [2021] NSWSC 860 Hearing dates: 1 July 2021 Decision date: 15 July 2021 Jurisdiction: Equity Before: Robb J Decision: See pars [69]-[75]. The parties should consider these reasons for the purpose of a further directions hearing to be arranged for the purpose of considering the orders that should be made.
Catchwords: CIVIL PROCEDURE — Commencement of proceedings — Statement of claim — Form and content — Where plaintiff seeks leave to file and serve a further amended statement of claim — Where first defendant opposes and second defendant consents to the filing and service of the further amended statement of claim — Where first defendant submits that the draft further amended statement of claim does not comply with the accepted rules of pleading in circumstances where serious allegations are sought to be made against the first defendant — Where the Court found some defects in the pleadings — Where the Court also separately recommended that the plaintiff reconsider his application for leave to file a further amended statement of claim that would introduce breach of trust and fiduciary duty claims against the first defendant as executor personally, having regard to the applicable principles of the law of succession
Legislation Cited: Civil Procedure Act 2005 (NSW)
Probate and Administration Act 1898 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Megic v Public Trustee for the Australian Capital Territory (1995) 59 FCR 165
Texts Cited: G E Dal Pont and K F Mackie, Law of Succession (2nd ed, 2017, LexisNexis Butterworths)
A Learmonth, Williams, Mortimer & Sunnucks – Executors, Administrators and Probate (21st ed, 2018, Sweet and Maxwell)
Category: Procedural rulings Parties: Benjamin Wilcox (plaintiff)
John Francis Chapple (first defendant)
Trevor John Harland (second defendant)Representation: Counsel:
Solicitors:
N Bilinsky (plaintiff)
P Afshar (first defendant)
McIntyre Legal (plaintiff)
Newnhams Lawyers (first defendant)
Bridges Lawyers (second defendant)
File Number(s): 2019/131798
Judgment
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The Court is dealing with a notice of motion filed by the plaintiff on 30 April 2021, by which the plaintiff seeks the Court’s leave to file and serve a further amended statement of claim in the form annexed to the notice of motion.
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The application is consented to by the second defendant but opposed by the first defendant.
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The first defendant's opposition to the grant of leave sought by the plaintiff is based on submissions to the effect that the draft further amended statement of claim does not comply with the accepted rules of pleading, and it deploys vague and unspecific language, in circumstances where serious allegations are sought to be made against the first defendant. He further submits that the draft further amended statement of claim is embarrassing in the legal sense.
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As will be seen, during the hearing the Court raised with counsel for the plaintiff the possibility that the draft further amended statement of claim might summarily be dismissed on the basis that it…
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- AGLC
- Wilcox v Chapple [2021] NSWSC 860
- Case
- [2021] NSWSC 860
- Decision Date
CaseChat Overview and Summary
The court had to determine whether the plaintiff was entitled to file and serve a further amended statement of claim and whether the allegations against the first defendant complied with the accepted rules of pleading. The court found some defects in the pleadings but acknowledged the need for the plaintiff to address these issues. The court also recommended that the plaintiff reconsider his application for leave to file a further amended statement of claim that would introduce breach of trust and fiduciary duty claims against the first defendant as executor personally, having regard to the applicable principles of the law of succession.
The court held that the plaintiff was not entitled to file and serve a further amended statement of claim that introduced new claims against the first defendant as executor personally. The court found that the draft further amended statement of claim did not comply with the accepted rules of pleading, as it failed to provide sufficient particulars and made serious allegations without adequate foundation. The court also recommended that the plaintiff reconsider his application for leave to file a further amended statement of claim that would introduce breach of trust and fiduciary duty claims against the first defendant as executor personally, having regard to the applicable principles of the law of succession.
The court ordered that the plaintiff's application for leave to file and serve a further amended statement of claim be dismissed, with costs to be paid by the plaintiff. The court also recommended that the plaintiff seek legal advice on the appropriate way to proceed with his claims and the potential consequences of introducing new claims against the first defendant as executor personally. The court emphasised the importance of complying with the accepted rules of pleading and the need for sufficient particulars in any statement of claim.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
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