David Williamson v Vince Scarano [2011] NSWSC 1318

David Williamson v Vince Scarano [2011] NSWSC 1318

The constructive trust amendment was refused because it had been pleaded at the start of the proceedings, abandoned after deliberation, and then revived only late in the preparation for the summary disposal motion without adequate explanation; the Court inferred that it was a forensic manoeuvre to resist summary disposal. However, limited amendment was necessary to reflect the sale of the property and to claim a charge over the net sale proceeds, because without such amendment the existing claim was untenable. Leave to amend was therefore granted only for specified amendments and only on terms that the plaintiff pay $20,000 on account of costs, with the proceedings to be dismissed if that...

Jurisdiction
Australia
Judgment Date
04 November 2011
Procedural Posture
Interlocutory Applications / Defendant's Notice of Motion for Summary Disposal Under UCPR R 13.4 and Plaintiff's Notice of Motion for Leave to File a Further Amended Statement of Claim
Outcome
Limited leave to amend granted on terms; constructive trust amendment refused; proceedings ordered to be dismissed under UCPR r 13.4 with effect on 2 December 2011 if the plaintiff did not pay $20,000 on account of costs within 28 days.
Legal Topics
['summary Disposal' 'leave to Amend Pleadings' 'proprietary Estoppel' 'constructive Trust' 'equitable Charge' 'costs Terms on Amendment']
['practice and Procedure' 'equity' 'property'] ['summary Disposal' 'leave to Amend Pleadings' 'proprietary Estoppel' 'constructive Trust' 'equitable Charge' 'costs Terms on Amendment']

Case Brief

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Procedural Posture

Interlocutory Applications / Defendant's Notice of Motion for Summary Disposal Under UCPR R 13.4 and Plaintiff's Notice of Motion for Leave to File a Further Amended Statement of Claim

Legal Issues

  1. 1 ['Whether the plaintiff should be granted leave to amend the statement of claim after the Ermington property had been sold.' 'Whether the plaintiff should be permitted to reintroduce a constructive trust claim that had previously been abandoned.' 'Whether the proceedings should be summarily dismissed because the existing amended pleading claimed only a charge over a house no longer owned by the defendant.' 'Whether leave to amend should be granted only on terms requiring payment on account of costs.']

Ratio Decidendi

The constructive trust amendment was refused because it had been pleaded at the start of the proceedings, abandoned after deliberation, and then revived only late in the preparation for the summary disposal motion without adequate explanation; the Court inferred that it was a forensic manoeuvre to resist summary disposal. However, limited amendment was necessary to reflect the sale of the property and to claim a charge over the net sale proceeds, because without such amendment the existing claim was untenable. Leave to amend was therefore granted only for specified amendments and only on terms that the plaintiff pay $20,000 on account of costs, with the proceedings to be dismissed if that...

Court Disposition

Limited leave to amend granted on terms; constructive trust amendment refused; proceedings ordered to be dismissed under UCPR r 13.4 with effect on 2 December 2011 if the plaintiff did not pay $20,000 on account of costs within 28 days.

Orders

  • ['Grant the plaintiff leave to file a Further Amended Statement of Claim making only the specified amendments to claim a charge over the net proceeds of sale and related relief.' "Save for the specified amendments, dismiss the plaintiff's application for leave to amend." 'Leave to amend is granted upon terms that...