Wilkinson v Wilkinson [2002] NSWSC 175

Wilkinson v Wilkinson [2002] NSWSC 175

There was no sufficient cause shown for failure to bring the Family Provision Act claim within the prescribed period, thus no extension could be granted. However, on the constructive trust claim, it could not be said at this stage that the plaintiff's case was doomed to fail, so summary dismissal was not warranted.

Jurisdiction
Australia
Judgment Date
01 February 2002
Procedural Posture
Equity Proceedings (family Provision and Trust Claim) / Interlocutory Application for Summary Dismissal and Extension of Time
Outcome
Plaintiff's Family Provision Act claim dismissed; application to strike out constructive trust claim refused; leave granted to amend pleadings.
Legal Topics
['constructive Trusts' 'family Provision Act 1982 (nsw) Time Extension' 'summary Dismissal' 'interests in Land']
['equity' 'succession Law' 'property Law'] ['constructive Trusts' 'family Provision Act 1982 (nsw) Time Extension' 'summary Dismissal' 'interests in Land']

Case Brief

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Procedural Posture

Equity Proceedings (family Provision and Trust Claim) / Interlocutory Application for Summary Dismissal and Extension of Time

Legal Issues

  1. 1 ['Whether the court should extend time under s 16(2) Family Provision Act 1982 to permit a late claim' "Whether plaintiff's claim of constructive trust over property should be summarily dismissed for no reasonable cause of action"]

Ratio Decidendi

There was no sufficient cause shown for failure to bring the Family Provision Act claim within the prescribed period, thus no extension could be granted. However, on the constructive trust claim, it could not be said at this stage that the plaintiff's case was doomed to fail, so summary dismissal was not warranted.

Court Disposition

Plaintiff's Family Provision Act claim dismissed; application to strike out constructive trust claim refused; leave granted to amend pleadings.

Orders

  • ['Claim under Family Provision Act 1982 dismissed.' "That part of defendants' notice of motion relating to constructive trust claim dismissed." 'Plaintiff granted leave to file and serve amended statement of claim in respect of constructive trust claim on or before 8 March 2002.' 'Defence to be filed on or before 15...