Re Estate of Ronald Spencer Cornford; Cornford v Metcalfe [2005] NSWSC 530

Re Estate of Ronald Spencer Cornford; Cornford v Metcalfe [2005] NSWSC 530

Once leave has been granted and acted upon to amend a pleading, thereby withdrawing an admission, no further leave is needed. Amendments to raise previously conceded matters do not render a pleading embarrassing. When seeking extension of time for rectification of a will under s 29A, the relevant facts to support 'sufficient cause' must be pleaded; in the absence of such pleading, amendment of the cross-claim should be directed rather than striking out by the court.

Parties
Plaintiff: Ian Spencer Cornford; First Defendant: Dennis Lambourne; First Defendant: Anna Melissa Metcalfe; Second Defendant: Rhonda Valerie Metcalfe
Jurisdiction
Australia
Judgment Date
30 May 2005
Procedural Posture
Probate List / Hearing of Notices of Motion
Outcome
Plaintiff's motions to strike out parts of the amended defence and cross-claim refused. Defendants directed to file further amended cross-claim. Plaintiff ordered to pay defendants' costs. No order needed regarding document inspection as parties have agreed.
Legal Topics
Rectification of Will, Withdrawal of Admission, Amendment of Pleadings, Extension of Time to Apply for Rectification
Succession Civil Procedure Rectification of Will Withdrawal of Admission Amendment of Pleadings Extension of Time to Apply for Rectification

Case Brief

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Parties

Ian Spencer Cornford

Plaintiff

Dennis Lambourne

First Defendant

Anna Melissa Metcalfe

First Defendant

Rhonda Valerie Metcalfe

Second Defendant

Procedural Posture

Probate List / Hearing of Notices of Motion

Legal Issues

  1. 1 Whether leave is required to withdraw an admission after amendment of pleading is filed
  2. 2 Whether raising matters previously conceded makes a pleading embarrassing
  3. 3 Whether the basis for extension of time must be pleaded in rectification claims under section 29A Wills, Probate and Administration Act 1898

Ratio Decidendi

Once leave has been granted and acted upon to amend a pleading, thereby withdrawing an admission, no further leave is needed. Amendments to raise previously conceded matters do not render a pleading embarrassing. When seeking extension of time for rectification of a will under s 29A, the relevant facts to support 'sufficient cause' must be pleaded; in the absence of such pleading, amendment of the cross-claim should be directed rather than striking out by the court.

Court Disposition

Plaintiff's motions to strike out parts of the amended defence and cross-claim refused. Defendants directed to file further amended cross-claim. Plaintiff ordered to pay defendants' costs. No order needed regarding document inspection as parties have agreed.

Orders

  • Defendants to file and serve amended cross-claim by 5pm 20 June 2005 setting out basis for extension of time under s 29A.
  • Parties to bring in Short Minutes of Order regarding document access by 5pm 14 June 2005.