Photios v Photios [2019] NSWCA 158

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Photios v Photios [2019] NSWCA 158 Hearing dates: 28 May 2019 Date of orders: 27 June 2019 Decision date: 27 June 2019 Before: Bell P at [1] Gleeson JA at [99] Leeming JA at [100] Decision: 1. Allow the appeal.

2. Grant leave to amend the amended statement of cross-claim in the form of the proposed further amended statement of cross-claim that was the subject of the notice of motion before Rees J, subject to the following conditions:

a. the Appellant pay the Respondent's costs thrown away by the amendments;

b. to the extent that the Respondent needs to reinterview any of the witnesses from whom a witness statement or affidavit has already been obtained and filed, the Appellant pay the Respondent's costs of that exercise and the preparation of any further evidence consequent upon it;

c. the Appellant consent to any application for expedition of the hearing of the trial

d. the Appellant give to the Court and to the Respondent the undertakings in the form appended to these reasons; and

e. the Appellant consent to any further mediation sought by the Respondent, whether before or after the Respondent has filed her evidence in response to the allegations contained in the further amended statement of cross-claim and the evidence of Dr Wijeratne.

3. Direct that the parties file submissions within 5 business days of these orders in relation to whether or not the Appellant should be required to pay the mediator's costs of any further mediation as a condition of leave to amend. Catchwords: CIVIL PROCEDURE – refusal to allow amendment to challenge testamentary capacity on basis that amendment, if allowed, was doomed to fail – whether primary judge erred in concluding that claim was doomed to fail notwithstanding a finding that there was an arguable case of lack of testamentary capacity established – whether finding that proposed claim was doomed to fail was a discretionary decision or a finding of abuse of process – significance of unique public interest character of probate proceedings – meaning of "acquiescence" – absence of any real prejudice – appropriate conditions to be imposed on amendment