Glenda Phillips v James Phillips; John Matthew Phillips by his Tutor NSW Trustee & Guardian v James Phillips (No 2) [2017] NSWSC 281

Glenda Phillips v James Phillips; John Matthew Phillips by his Tutor NSW Trustee & Guardian v James Phillips (No 2) [2017] NSWSC 281

The amendment fell within s 64(2) of the Civil Procedure Act 2005 (NSW) because it was necessary to determine the real questions raised by the proceedings and to avoid multiplicity of proceedings, as adequate provision for family members was already before the Court and James could otherwise file a fresh summons. Although the unexplained delay from 30 January 2017 to the first day of the hearing was a serious disentitling factor, James had an arguable case for leave to bring an out of time provision application, some asserted prejudice was not relevant or was merely the consequence of working out legal entitlements, and the real forensic prejudice concerning investigation of James'...

Jurisdiction
Australia
Judgment Date
22 March 2017
Procedural Posture
Practice and Procedure Application to Amend Cross Claim in Equity Probate List Proceedings Involving Probate and Family Provision Claims / Application Made on the First Day of the Hearing; Reasons for Order Allowing Amendment
Outcome
Amendment application allowed.
Legal Topics
['amendment of Pleadings' 'cross Claim for Provision From Estate' 'delay and Prejudice' 'testamentary Capacity' 'out of Time Family Provision Application' 'separate Determination of Questions']
['practice and Procedure' 'succession' 'probate' 'family Provision'] ['amendment of Pleadings' 'cross Claim for Provision From Estate' 'delay and Prejudice' 'testamentary Capacity' 'out of Time Family Provision Application' 'separate Determination of Questions']

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Procedural Posture

Practice and Procedure Application to Amend Cross Claim in Equity Probate List Proceedings Involving Probate and Family Provision Claims / Application Made on the First Day of the Hearing; Reasons for Order Allowing Amendment

Legal Issues

  1. 1 ["Whether James should be granted leave to amend his cross-claim to include a claim for provision from Bill's estate if the Court found Bill died intestate." "Whether James had an arguable case for leave to bring a family provision application later than 12 months after Bill's death." 'Whether the lateness of the amendment application and alleged prejudice to Glenda, Lesley and Robert justified refusing the amendment.' "Whether any prejudice from the amendment could be ameliorated by first determining Bill's testamentary capacity."]

Ratio Decidendi

The amendment fell within s 64(2) of the Civil Procedure Act 2005 (NSW) because it was necessary to determine the real questions raised by the proceedings and to avoid multiplicity of proceedings, as adequate provision for family members was already before the Court and James could otherwise file a fresh summons. Although the unexplained delay from 30 January 2017 to the first day of the hearing was a serious disentitling factor, James had an arguable case for leave to bring an out of time provision application, some asserted prejudice was not relevant or was merely the consequence of working out legal entitlements, and the real forensic prejudice concerning investigation of James'...

Court Disposition

Amendment application allowed.

Orders

  • ["James' application to amend his cross-claim to make a claim for provision from Bill's estate was allowed." 'Pursuant to UCPR Part 28, r 28.2, prayers 1 and 2 of the amended statement of cross-claim were ordered to be determined separately from and before the determination of any other questions in proceedings...