Johnston v Maclarn [2001] NSWSC 932

Johnston v Maclarn [2001] NSWSC 932

As presently pleaded, there is no fiduciary duty owed to the plaintiff and thus no equitable principle requiring disclosure can be invoked; contract underlying consent judgment not shown to be invalid under Contracts Review Act; matter stood over for parties to consider amendments and to determine if triable issue exists in equity.

Jurisdiction
Australia
Judgment Date
26 September 2001
Procedural Posture
Application to Strike Out Statement of Claim / Interlocutory; Stood Over for Further Consideration and Proposed Amendment
Outcome
Matter stood over for further consideration and possible amendment; no final orders made.
Legal Topics
['wills' 'specific Legacy' 'ademption' 'contracts Review Act 1980' 'fiduciary Duty' 'settlement of Litigation']
['succession' 'equity'] ['wills' 'specific Legacy' 'ademption' 'contracts Review Act 1980' 'fiduciary Duty' 'settlement of Litigation']

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Procedural Posture

Application to Strike Out Statement of Claim / Interlocutory; Stood Over for Further Consideration and Proposed Amendment

Legal Issues

  1. 1 ['Whether executrix owed a duty to inform plaintiff of bequest' 'Whether plaintiff was owed a fiduciary duty as a potential beneficiary' 'Whether the legacy was adeemed by the sale of securities' 'Whether there is an actionable principle of non-disclosure in common law or equity' 'Applicability of Contracts Review Act 1980 to consent judgments in settlement' 'Whether actions in District Court can be challenged in Supreme Court']

Ratio Decidendi

As presently pleaded, there is no fiduciary duty owed to the plaintiff and thus no equitable principle requiring disclosure can be invoked; contract underlying consent judgment not shown to be invalid under Contracts Review Act; matter stood over for parties to consider amendments and to determine if triable issue exists in equity.

Court Disposition

Matter stood over for further consideration and possible amendment; no final orders made.

Orders

  • ['Matter stood over to 13 November 2001 at 9.50 am' 'Any draft further amended statement of claim and intimation to be served by 10 October 2001 at 4.30 pm' 'Costs of today reserved']