Everett v King [2010] NSWDC 51

Everett v King [2010] NSWDC 51

The incorrect description of the defendant as "The Estate of the late Garry King" was a procedural defect of the kind contemplated by s 64 of the Civil Procedure Act 2005 and should be corrected to determine the real questions in the proceedings and avoid multiplicity of proceedings. The executors identified no prejudice, and the court was not deprived of power to permit amendment merely because the executors characterised the proceedings as a nullity.

Jurisdiction
Australia
Judgment Date
05 February 2010
Procedural Posture
Civil Proceedings Seeking Orders Under the Limitation Act 1969 for Extension of Limitation Periods, With Interlocutory Motions Concerning Amendment and Dismissal / Determination of Plaintiffs' Motions for Leave to Amend the Summonses and Proposed Statements of Claim, and Executors' Motions to Dismiss the Summonses
Outcome
The plaintiffs' motions for leave to amend succeeded and the executors' motions to dismiss were dismissed.
Legal Topics
['amendment of Originating Process' 'misdescription of Defendant' 'misnomer' 'nullity Argument' 'survival of Causes of Action Against Deceased Estate' 'costs of Motions']
['practice and Procedure' 'civil Procedure' 'limitation of Actions' 'deceased Estates'] ['amendment of Originating Process' 'misdescription of Defendant' 'misnomer' 'nullity Argument' 'survival of Causes of Action Against Deceased Estate' 'costs of Motions']

Case Brief

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Procedural Posture

Civil Proceedings Seeking Orders Under the Limitation Act 1969 for Extension of Limitation Periods, With Interlocutory Motions Concerning Amendment and Dismissal / Determination of Plaintiffs' Motions for Leave to Amend the Summonses and Proposed Statements of Claim, and Executors' Motions to Dismiss the Summonses

Legal Issues

  1. 1 ['Whether the plaintiffs should be granted leave to amend the Summonses and proposed Statements of Claim to describe the defendants as the executors of the estate of the late Garry Charles King.' 'Whether proceedings commenced against "The Estate of the late Garry King" were a nullity because that was not a legal entity and probate had not yet been granted.' 'Whether s 64 or s 65(2)(b) of the Civil Procedure Act 2005 governed the proposed amendment.' "Whether the executors' motions to dismiss the Summonses should be granted."]

Ratio Decidendi

The incorrect description of the defendant as "The Estate of the late Garry King" was a procedural defect of the kind contemplated by s 64 of the Civil Procedure Act 2005 and should be corrected to determine the real questions in the proceedings and avoid multiplicity of proceedings. The executors identified no prejudice, and the court was not deprived of power to permit amendment merely because the executors characterised the proceedings as a nullity.

Court Disposition

The plaintiffs' motions for leave to amend succeeded and the executors' motions to dismiss were dismissed.

Orders

  • ['Leave to the plaintiffs to amend the Summonses to describe the defendants as "Peter James King and Jennifer Jane King as Executors of the Estate of the Late Garry Charles King".' 'Leave to the plaintiffs to correspondingly amend their proposed Statements of Claim annexed to their Summonses.' 'Dismiss the motions...