Re Fuller, Michael John; Wily, Hugh Jenner as Trustee of the Estate of Michael John Fuller & Anor v Fuller, Laima & Ors [1998] FCA 948

Re Fuller, Michael John; Wily, Hugh Jenner as Trustee of the Estate of Michael John Fuller & Anor v Fuller, Laima & Ors [1998] FCA 948

Leave to amend the statement of claim is granted as both the resulting trust and restitution claims arise out of the same circumstances, and it is in the interests of justice for such claims to be heard together; any prejudice to respondents can be addressed by an order for costs. Proceedings relating to the second respondents are to be remitted to the Supreme Court of South Australia, as the Federal Court is not the appropriate forum.

Jurisdiction
Australia
Judgment Date
31 July 1998
Procedural Posture
Civil / Interlocutory; Leave to Amend Statement of Claim and Orders as to Remitter and Costs
Outcome
Leave to amend statement of claim granted; proceedings against the second respondents remitted to Supreme Court of South Australia; costs ordered against second applicant.
Legal Topics
['leave to Amend Pleadings' 'remitter to State Court' 'resulting Trust' 'constructive Trust' 'restitution' 'costs' 'pleading Amendments']
['civil Procedure' 'equity' 'insolvency'] ['leave to Amend Pleadings' 'remitter to State Court' 'resulting Trust' 'constructive Trust' 'restitution' 'costs' 'pleading Amendments']

Case Brief

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Procedural Posture

Civil / Interlocutory; Leave to Amend Statement of Claim and Orders as to Remitter and Costs

Legal Issues

  1. 1 ['Whether leave should be granted to amend the statement of claim to include causes of action in resulting trust, constructive trust, and restitution against first and second respondents' 'Whether proceedings relating to the second respondents should be remitted to the Supreme Court of South Australia' 'Whether an order for costs should be made against the second applicant']

Ratio Decidendi

Leave to amend the statement of claim is granted as both the resulting trust and restitution claims arise out of the same circumstances, and it is in the interests of justice for such claims to be heard together; any prejudice to respondents can be addressed by an order for costs. Proceedings relating to the second respondents are to be remitted to the Supreme Court of South Australia, as the Federal Court is not the appropriate forum.

Court Disposition

Leave to amend statement of claim granted; proceedings against the second respondents remitted to Supreme Court of South Australia; costs ordered against second applicant.

Orders

  • ['Leave be given to file an amended statement of claim so far as concerns paragraphs 58 to 58(j) and 63 to 66 relating to the second respondents and paragraphs 46 to 46(h) and 51 to 57 so far as they relate to the first respondent.' 'The proceedings reflected in paragraphs 58 to 58(j) and 63 to 66 relating to the...