Thynne v Jevny Pty Ltd (No 2) [2023] NSWSC 1465

Supreme Court New South Wales

Medium Neutral Citation: Thynne v Jevny Pty Ltd (No 2) [2023] NSWSC 1465 Hearing dates: 6 November 2023 Date of orders: 30 November 2023 Decision date: 30 November 2023 Jurisdiction: Equity Before: Robb J Decision: See [66] Catchwords: CIVIL PROCEDURE – originating process – amendment – where plaintiff seeks leave to amend statement of claim – where substantive proceedings concern claim by plaintiff that second defendant used real property she inherited in a manner inconsistent with a memorandum of wishes she signed with the deceased testator – where the Court of Appeal has determined that plaintiff does not have a present beneficial interest in the real property – where plaintiff seeks to amend statement of claim in order to accommodate the effect of the reasons of the Court of Appeal – whether plaintiff's draft amended statement of claim cures the deficiencies in the existing statement of claim – held that the proposed amendments do not cure the substantive deficiencies in the plaintiff's claim to have an existing beneficial interest in the real property – leave to amend statement of claim to be refused CIVIL PROCEDURE – pleadings – particulars – summary dismissal – striking out – where second defendant seeks orders for the summary dismissal and striking out of the plaintiff's prayers for relief and associated pleadings and particulars concerning her ownership and use of the real property – where said prayers for relief and associated pleadings and particulars depend on the existence of a present trust interest in favour of the plaintiff over part of the real property – held that such a trust interest does not automatically arise in equity – held that there is no basis for imposing such a trust interest – orders to be made summarily dismissing prayers for relief in the plaintiff's statement of claim which depend on the existence of a present trust interest in favour of the plaintiff over the real property – orders to be made striking out allegations by the plaintiff regarding the real property and the plaintiff's restatement of his entitlement to the relief claimed – leave to amend the pleadings and particulars struck out or summarily dismissed to be refused CIVIL PROCEDURE – subpoenas – application to set aside – where second defendant seeks orders to set aside and 'undo' the effect of a subpoena issued to a bank at the instance of the plaintiff – application to set aside subpoena ultimately not pressed as the Court will make the summary dismissal order sought by the second defendant Legislation Cited: Real Property Act 1900 (NSW), s 74J Trustee Act 1925 (NSW), ss 5, 70 Uniform Civil Procedure Rules 2005 (NSW), rr 13.4, 14.28, 33.4 Cases Cited: Birmingham v Renfrew (1937) 57 CLR 666; [1937] HCA 52 Giumelli v Giumelli (1999) 196 CLR 101; [1999] HCA 10 Harry Bernard Thynne v Jevny Pty Limited [2022] NSWSC 1774 The Ampthill Peerage [1977] AC 547 Thynne v Sheringham [2023] NSWCA 181 Voges v Monaghan (1954) 94 CLR 231; [1954] HCA 63 Texts Cited: JD Heydon and MJ Leeming, Jacobs' Law of Trusts in Australia (8th ed, 2016, LexisNexis Butterworths) Category: Procedural rulings Parties: Harry Bernard Thynne (Plaintiff) Jevny Pty Ltd (First Defendant) Victoria Diane Sheringham (Second Defendant) Representation: Counsel: SV Shepherd (Plaintiff) P Knowles SC (Defendants)