Butcher v Balog [2017] NSWSC 1409

Butcher v Balog [2017] NSWSC 1409

Leave is granted to the plaintiff to amend to seek a notional estate order and join the deceased's parents as defendants for this purpose; derivative suit permitted only with proper certification and security for additional costs; proprietary estoppel claim as currently pleaded is insufficient; subpoena was improperly issued before joinder and is set aside.

Jurisdiction
Australia
Judgment Date
19 October 2017
Procedural Posture
Family Provision (equity) / Interlocutory Applications—subpoena, Amendment, Joinder, Leave
Outcome
Subpoena set aside; deceased's parents joined as additional defendants; leave granted to plaintiff to amend claim for notional estate order; plaintiff's motion adjourned.
Legal Topics
['family Provision' 'derivative Suits' 'notional Estate' 'proprietary Estoppel' 'resulting Trust']
['equity' 'civil Procedure' 'succession Law'] ['family Provision' 'derivative Suits' 'notional Estate' 'proprietary Estoppel' 'resulting Trust']

Case Brief

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Procedural Posture

Family Provision (equity) / Interlocutory Applications—subpoena, Amendment, Joinder, Leave

Legal Issues

  1. 1 ['Whether the plaintiff may bring derivative claims against third parties in a family provision proceeding' "Whether the estate has interests in properties held by the deceased's parents" 'Whether a subpoena may be issued to third parties before formal joinder' 'Joinder of additional defendants for notional estate claim' 'Adequacy of pleadings for proprietary estoppel']

Ratio Decidendi

Leave is granted to the plaintiff to amend to seek a notional estate order and join the deceased's parents as defendants for this purpose; derivative suit permitted only with proper certification and security for additional costs; proprietary estoppel claim as currently pleaded is insufficient; subpoena was improperly issued before joinder and is set aside.

Court Disposition

Subpoena set aside; deceased's parents joined as additional defendants; leave granted to plaintiff to amend claim for notional estate order; plaintiff's motion adjourned.

Orders

  • ['Order that the subpoena to produce addressed to Melvyn Patrick Butcher and Meryl Lorraine Butcher and dated 18 August 2017 be set aside.' 'Order that the plaintiff pay the costs of the motion, such costs to be payable and assessable forthwith.' 'Order that Melvyn Patrick Butcher and Meryl Lorraine Butcher be...