Wilcox v Chapple - [2021] NSWSC 860

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:
Aslan v Kopf [1995] NSWCA 26
Megic v Public Trustee for the Australian Capital Territory (1995) 59 FCR 165
Wilcox v Chapple [2020] NSWSC 1859

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:
N Bilinsky (plaintiff)
P Afshar (first defendant)
Solicitors:
McIntyre Legal (plaintiff)
Newnhams Lawyers (first defendant)
Bridges Lawyers (second defendant)

File Number(s): 2019/131798

Judgment

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.
The application is consented to by the second defendant but opposed by the first defendant.
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.
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…

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 Wilcox v Chapple

Details

AGLC: Wilcox v Chapple [2021] NSWSC 860
Case: [2021] NSWSC 860
Decision Date: 15 July 2021

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, the case of Wilcox v Chapple involved a dispute concerning the commencement of proceedings and the form and content of a statement of claim. The plaintiff, Wilcox, sought leave to file and serve a further amended statement of claim, which was opposed by the first defendant and consented to by the second defendant. The first defendant argued that the draft further amended statement of claim did not comply with the accepted rules of pleading, particularly as it sought to make serious allegations against the first defendant. The plaintiff aimed to introduce breach of trust and fiduciary duty claims against the first defendant in his personal capacity as executor.

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