Stone v Kramer (No 2) [2022] NSWSC 1716

Stone v Kramer (No 2) [2022] NSWSC 1716

The plaintiff’s attempt to amend the scope of relief to include the water licence and plant/equipment went beyond what was pleaded and contested at trial and risked unfairness to the defendants and disruption of the finality and integrity of prior findings. The interests of justice, particularly finality and fairness, warranted dismissing the notice of motion to amend and reopen, except for the discrete issue of costs incidental to transfer (stamp duty, etc.), which could be determined without rehearing the substantive issues. The Calderbank offer’s rejection was not unreasonable in context, so no indemnity costs order was warranted.

Parties
Plaintiff: David Lindsay Stone; First Defendant/executor: Hilary Lorraine Kramer; Second Defendant/executor: Jaime Ferrer
Jurisdiction
Australia
Judgment Date
16 December 2022
Procedural Posture
Equity / Consequential Orders, Post Primary Judgment, on Notice of Motion for Amendment and Proposed Final Orders
Outcome
Plaintiff’s notice of motion mainly dismissed; leave granted only to amend and adduce evidence on discrete issue of costs incidental to transfer; final orders made for transfer of Colo Property; costs ordered on ordinary basis.
Legal Topics
Proprietary Estoppel, Trusts, Relief Consequential to Estoppel, Amendment of Pleadings, Reopening Case After Judgment, Consequential Costs Orders, Calderbank Offers, Finality of Litigation
Equity Estoppel Civil Procedure Costs Proprietary Estoppel Trusts Relief Consequential to Estoppel Amendment of Pleadings +4 more

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Parties

David Lindsay Stone

Plaintiff

Hilary Lorraine Kramer

First Defendant/executor

Jaime Ferrer

Second Defendant/executor

Procedural Posture

Equity / Consequential Orders, Post Primary Judgment, on Notice of Motion for Amendment and Proposed Final Orders

Legal Issues

  1. 1 Whether plaintiff should be granted leave to amend the statement of claim to include water licence and equipment as subjects of trust and relief
  2. 2 Whether the Court should reopen the case to allow further evidence on the entitlement to water licence and plant/equipment
  3. 3 Whether defendants as executors should pay all costs, including stamp duty, incidental to transfer of Colo Property

Ratio Decidendi

The plaintiff’s attempt to amend the scope of relief to include the water licence and plant/equipment went beyond what was pleaded and contested at trial and risked unfairness to the defendants and disruption of the finality and integrity of prior findings. The interests of justice, particularly finality and fairness, warranted dismissing the notice of motion to amend and reopen, except for the discrete issue of costs incidental to transfer (stamp duty, etc.), which could be determined without rehearing the substantive issues. The Calderbank offer’s rejection was not unreasonable in context, so no indemnity costs order was warranted.

Court Disposition

Plaintiff’s notice of motion mainly dismissed; leave granted only to amend and adduce evidence on discrete issue of costs incidental to transfer; final orders made for transfer of Colo Property; costs ordered on ordinary basis.

Orders

  • Declaration that defendants as executors hold the Colo Property on trust for the plaintiff.
  • Order that defendants transfer title to Colo Property to plaintiff within 90 days.