Supreme Court New South Wales Medium Neutral Citation: Zecevic v Arzamazova [2013] NSWSC 66 Hearing dates: 07.02.2013 Decision date: 07 February 2013 Jurisdiction: Equity Division Before: Lindsay J Decision: Statement of Claim struck out, with leave to re-plead Catchwords: PROCEDURE - Supreme Court procedure - New South Wales - pleadings - struck out - statement of claim takes form of narrative pleading - of different claims for relief not clearly articulated - whether statement of claim should be struck out. Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), r 14.28 Succession Act 2006 (NSW) Cases Cited: - Texts Cited: - Category: Interlocutory applications Parties: Vaso Zecevic (Plaintff) Elena Arzamazovav (Defendant) Representation: G M McGrath (Plaintiff) B Skinner (Defendant) Stojanovic Solicitors (Plaintiff) Stockman & Evans Solicitors (Defendant) File Number(s): 2012/00252654 Judgment - EX TEMPORE 1Before the Court is a notice of motion filed by the defendant on 23 October 2012 seeking an order that the statement of claim filed on 7 September 2012 be struck out pursuant to Rule 14.28 of the Uniform Civil Procedure Rules 2005 (NSW). 2The statement of claim was filed pursuant to an order made on 16 August 2012. That order did not in terms provide for the proceedings (commenced by summons) to continue on pleadings but, as it incorporated directions for the filing of a statement of claim and a defence, I infer that it was the intention of the Court, and of the parties, that the proceedings continue on pleadings. I proceed on that basis. 3The statement of claim takes the form of what counsel for the plaintiff describes as a "narrative pleading". It presents difficulties in that form because there appear to be suggestions, not clearly articulated, of three different claims for relief, allegations relating to which are intermingled. 4The first of the three types of claims for relief ostensibly made by the plaintiff is an application for revocation of a grant of probate apparently made by this Court on 6 January 2012, to the defendant, in respect of a will dated 30 March 2010 made by the late Milica Tadic-Damjanovic. The deceased died on 1 August 2010. 5The second type of claim for relief apparently made is a claim based upon an allegation that there was an agreement made between the plaintiff and the deceased for the deceased to make a will in favour of the plaintiff. It is not clear from the pleading whether the agreement is said to have taken the form of a contract to make a will or whether it merely supports an estoppel. 6The third type of claim for relief evidently sought to be made is a claim for Family Provision relief under the Succession Act 2006 (NSW). The pleading refers in broad terms to an unarticulated claim "for provision...out of the estate or notional estate" of the deceased. There may be a question as to whether the plaintiff falls within the statutory definition of an "eligible person", and there is a question as to whether an extension of time ought to be granted for the making of an application for Family Provision relief. These proceedings were commenced on 14 August 2012, more than one year after the death of the deceased. 7In my assessment, the narrative form of pleading (if that is what it is) adopted in the statement of claim is embarrassing, and some of that embarrassment flows from an imprecise attempt at joinder in the proceedings of the three types of claims for relief sought to be advanced. 8I propose to order that the statement of claim be struck out and that, if the plaintiff seeks to maintain an attack on the validity of the deceased's will, to require that separate proceedings for revocation of the grant of probate be commenced by the filing of Originating Process in the Probate List of the Equity Division. 9It may well be that those separate probate proceedings might, in the fullness of time, be heard at the same time as any claims for relief sought to be advanced by the plaintiff in the Court's general Equity jurisdiction and under the Succession Act. That will depend upon a future assessment of how best to manage an orderly determination of the questions in dispute. 10I am not to be taken as proceeding on an assumption that the Court is unable to entertain claims for probate and equitable relief in the same proceedings. Clearly it can do so in an appropriate case. 11In my opinion, this is not an appropriate case. Some of the confusion that attends the statement of claim under challenge arises, in my assessment, from a failure to ensure that distinct allegations are made, on the one hand, by way of challenge to the validity of the deceased's will and, on the other hand, by way of claims for relief in Equity and under the Succession Act. Depending on the existence or otherwise of antecedent wills and the deceased's family background, an application for revocation of the subsisting grant of probate may also require an approach to parties or representation that differs from that appropriate to the balance of the plaintiff's claims for relief. 12I make the following notations and orders: (1) Note that these proceedings are to proceed by way of pleadings. (2) Order that the statement of claim filed on 7 September 2012 be struck out. (3) Direct that any application for revocation of the grant of probate made on 6 January 2012 to the defendant in respect of the will of the deceased (the late Milica Tadic-Damjanovic) dated 30 March 2010 be made by way of Originating Process filed in separate proceedings, in the Probate List of the Equity Division, no later than 28 February 2013. (4) Order that the plaintiff be granted leave to amend the statement of claim (seeking relief other than an order for revocation of probate) and that any amended statement of claim be filed and served no later than 28 February 2013. (5) Direct that the defendant file and serve on or before 14 March 2013 any defence proposed to be filed in response to the amended statement of claim. (6) Direct that these proceedings be listed before the Registrar in Equity for directions at 9 am on 25 March 2013. (7) Reserve to the parties liberty to apply to the Registrar for a direction that these proceedings be listed at the same time and place as any proceedings commenced by the plaintiff in the Probate List pursuant to order 3. (8) Order that the plaintiff pay the costs of the notice of motion of the defendant filed on 23 October 2013. (9) Order that exhibit P1 be returned to the plaintiff. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 February 2013