BROWN v BROWN

The Plaintiff in a long-running divorce and matrimonial property Action obtained leave in morning Chambers to amend his claim to plead enforcement of a decades-old pre-nuptial agreement (despite a later alleged termination) and to claim occupation rent since separation. The Defendant appealed both amendments.

The Court noted that, once pleadings are closed, amendments require permission under rule 3.62(1)(b) and are governed by rule 3.65. From there, the Court emphasized the deferential standard on appeal: amendment rulings are discretionary, and intervention lies only for an extricable error of law, a palpable and overriding error of fact, or an unreasonable exercise of discretion. The Court affirmed that there is no fixed deadline for amendments, and they may be allowed even late in the proceeding where a low evidentiary threshold is met and none of the recognized bars apply, namely non-compensable prejudice, hopelessness, limitation-barred new party or cause, or bad faith.

Turning to Application, the Court agreed the Chambers Judge was entitled to find the modest evidentiary threshold satisfied. On the pre-nuptial amendment, the record contained both the original agreement and the purported termination, together with sworn assertions that had already been canvassed in Questioning and that challenged the termination’s validity. At the amendment stage, that was sufficient. Whether the termination would ultimately succeed was a Trial question, not a basis to label the amendment hopeless. As for occupation rent, Affidavit evidence of exclusive post-separation occupation and non-payment supplied the necessary minimal support for pleading the claim, which was a discretionary and fact-specific remedy best resolved at Trial.

Finally, addressing prejudice, the Court held that additional Questioning, scheduling adjustments, or even a longer Trial would be compensable in Costs and thus did not amount to non-compensable prejudice.

In the result, the Court found no reviewable error of the Chambers Judge’s Decision and dismissed the Appeal.