Wilcox v Chapple [2021] NSWSC 860

Supreme Court New South Wales

Medium Neutral Citation: Wilcox v Chapple [2021] NSWSC 860 Hearing dates: 1 July 2021 Decision date: 15 July 2021 Jurisdiction: Equity Before: Robb J Decision: See pars [69]-[75]. The parties should consider these reasons for the purpose of a further directions hearing to be arranged for the purpose of considering the orders that should be made. Catchwords: CIVIL PROCEDURE — Commencement of proceedings — Statement of claim — Form and content — Where plaintiff seeks leave to file and serve a further amended statement of claim — Where first defendant opposes and second defendant consents to the filing and service of the further amended statement of claim — Where first defendant submits that the draft further amended statement of claim does not comply with the accepted rules of pleading in circumstances where serious allegations are sought to be made against the first defendant — Where the Court found some defects in the pleadings — Where the Court also separately recommended that the plaintiff reconsider his application for leave to file a further amended statement of claim that would introduce breach of trust and fiduciary duty claims against the first defendant as executor personally, having regard to the applicable principles of the law of succession Legislation Cited: Civil Procedure Act 2005 (NSW) Probate and Administration Act 1898 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Aslan v Kopf [1995] NSWCA 26 Megic v Public Trustee for the Australian Capital Territory (1995) 59 FCR 165 Wilcox v Chapple [2020] NSWSC 1859 Texts Cited: G E Dal Pont and K F Mackie, Law of Succession (2nd ed, 2017, LexisNexis Butterworths) A Learmonth, Williams, Mortimer & Sunnucks – Executors, Administrators and Probate (21st ed, 2018, Sweet and Maxwell) Category: Procedural rulings Parties: Benjamin Wilcox (plaintiff) John Francis Chapple (first defendant) Trevor John Harland (second defendant) Representation: Counsel: N Bilinsky (plaintiff) P Afshar (first defendant)