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My name is ***** ***** I am a NSW Solicitor. Thank you for your question, and will do my best to assist you with your question. Please understand this is not legal advise Please understand this is not legal advise but a guide to assist you.
Is this in Australia or Canada?
I have asked you be referred to a canadian lawyer
What is the application for? Is this for the passing of accounts?Or is this actually a lawsuit for damages?Are you a party or a beneficiary of the estate.
I need to get a clearer picture of what is going on.
This is very complicated and it's hard to determine by just hearing a few details online.
It sounds like the issues are all tied together and that it would save the court time and the parties money and time if the matters could all be handled at once. They sound like they are intertwined considerably.
So it may make sense to try and counterclaim at the time you are responding and let them bring a motion if they wish to have the new issue severed from this case and have you start a new application.
From the little I know, the court should want the matters tried together.
If you have not yet put in a reply to the application then they way I would do this is to put in a reply and a counter-claim at the same time.
If this is just the beginning of the lawsuit and you are drafting pleadings you would not use an Affidavit at this point. That is for evidence but you first have to put in your story essentially.
The facts have to be bound up in some way. But if this is all about the same estate, the same parties and much of the same facts it would make sense to join the issues rather than starting a separate application.
I can see you've not read my last post. So I am going to go to bed but I will check back in the morning.
But I've been thinking about what I've said some more and just want to clarify that if this is about the passing of accounts so that the main document is an affidavit and shows what the Trustee did with the money and they are asking for the court approval and you are objecting then that is different and then you need to start a separate action for the claim you have.
I will be back in the morning.
Have a good night.
If you have been served with a claim you do not do an affidavit or brief at this point in time.
You do a defence and then a counter-claim.
Here is a link to the forms:https://albertacourts.ca/court-of-queens-bench/publications-forms/civil-forms
Use Form 21 for the counter-claim.
I think you can only file a reply and counter-claim if this is to the interim application but this is really complicated and so try to do what you want and see what happens. That sometimes works especially when you are self-representing.
Thanks re the name. I thought it was great though my kids aren't impressed.
They two documents are separate but should go in at the same time.
You can seek the direction of the court as to whether this should be one action or two.
You don't want to end up in a situation where the plaintiff in the main action says the matter has already been tried and you cannot now bring a claim.