Daire v Haley [2023] NSWSC 77

Daire v Haley [2023] NSWSC 77

Leave to amend and file a cross-claim is granted despite lateness because the issue of a resulting trust was earlier mooted in the proceedings and not wholly outside the Plaintiffs’ preparation; potential prejudice to the Plaintiffs can be addressed by allowing them to respond; and addressing any issues relating to bankruptcy and interests of a trustee may require further hearing. The balance of justice favours allowing the amendment, but costs are reserved and the matter adjourned for further directions.

Parties
First Plaintiff: Kimberley Jane Daire; Second Plaintiff: Nikki Ann Daire; First Defendant: Thomas Murray Haley; Second Defendant: Registrar-General of New South Wales
Jurisdiction
Australia
Judgment Date
31 January 2023
Procedural Posture
Equity Proceeding / Interlocutory Hearing on Amendment and Cross Claim
Outcome
Leave to amend and cross-claim granted; hearing adjourned; costs reserved.
Legal Topics
Amendment of Pleadings, Cross Claim, Constructive Trust, Resulting Trust, Bankruptcy, Real Property
Civil Procedure Equity Amendment of Pleadings Cross Claim Constructive Trust Resulting Trust Bankruptcy Real Property

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Parties

Kimberley Jane Daire

First Plaintiff

Nikki Ann Daire

Second Plaintiff

Thomas Murray Haley

First Defendant

Registrar-General of New South Wales

Second Defendant

Procedural Posture

Equity Proceeding / Interlocutory Hearing on Amendment and Cross Claim

Legal Issues

  1. 1 Whether leave should be granted to Defendant to amend defence and file cross-claim for a resulting trust
  2. 2 Whether the late amendment causes prejudice or delay justifying refusal of leave
  3. 3 Whether possible issues relating to Defendant's bankruptcy and trustee’s interest require further hearing and joinder

Ratio Decidendi

Leave to amend and file a cross-claim is granted despite lateness because the issue of a resulting trust was earlier mooted in the proceedings and not wholly outside the Plaintiffs’ preparation; potential prejudice to the Plaintiffs can be addressed by allowing them to respond; and addressing any issues relating to bankruptcy and interests of a trustee may require further hearing. The balance of justice favours allowing the amendment, but costs are reserved and the matter adjourned for further directions.

Court Disposition

Leave to amend and cross-claim granted; hearing adjourned; costs reserved.

Orders

  • Grants leave to Defendant to file the Notice of Motion in Court.
  • Grants leave to Defendant to file Amended Defence and Cross-Claim.