Duffy v Duffy [2001] NSWSC 309

Duffy v Duffy [2001] NSWSC 309

Consent orders were made to set aside previous orders due to special circumstances which operated as an exception to Anshun estoppel, allowing Mr Kevin Duffy, Jr to pursue his claims against the estate. The involvement of affidavit material accompanying pleadings justified leave to remake a defence. Settlement was reached accordingly.

Parties
Plaintiff: Bernard John Duffy; Plaintiff: Marie Louise Henry; Plaintiff: Gregory Edmund Duffy; Defendant: Kevin Michael Duffy; Defendant: Sandra Ann Duffy; Plaintiff: Rita Ellen Duffy
Jurisdiction
Australia
Judgment Date
12 April 2001
Procedural Posture
Multiple Proceedings Concerning Estate and Family Provision Act / Consent Orders Following Appeals; Settlement
Outcome
Consent orders made, settlement achieved
Legal Topics
Family Provision Act Applications, Estoppel (anshun Estoppel), Striking Out Pleadings, Leave to Plead, Estate Litigation, Possession Proceedings
Equity Civil Procedure Family Provision Act Applications Estoppel (anshun Estoppel) Striking Out Pleadings Leave to Plead Estate Litigation Possession Proceedings

Case Brief

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Parties

Bernard John Duffy

Plaintiff

Marie Louise Henry

Plaintiff

Gregory Edmund Duffy

Plaintiff

Kevin Michael Duffy

Defendant

Sandra Ann Duffy

Defendant

Rita Ellen Duffy

Plaintiff

Procedural Posture

Multiple Proceedings Concerning Estate and Family Provision Act / Consent Orders Following Appeals; Settlement

Legal Issues

  1. 1 Whether striking out an inadequately pleaded defence was appropriate without providing leave to re-plead
  2. 2 Application and exception to Anshun estoppel in estate proceedings
  3. 3 Whether special circumstances existed to permit claims despite previous orders

Ratio Decidendi

Consent orders were made to set aside previous orders due to special circumstances which operated as an exception to Anshun estoppel, allowing Mr Kevin Duffy, Jr to pursue his claims against the estate. The involvement of affidavit material accompanying pleadings justified leave to remake a defence. Settlement was reached accordingly.

Court Disposition

Consent orders made, settlement achieved

Orders

  • Orders of Master Harrison and Master McLaughlin set aside by consent
  • Leave granted to remake/amend pleadings as reflected in consent orders