Ashton v Pratt

Case [2013] NSWCA 400

This decision has been amended. Please see the end of the decision for a list of the amendments.

Court of Appeal

New South Wales
Case Title: Ashton v Pratt
Medium Neutral Citation: [2013] NSWCA 400
Hearing Date(s): 18 November 2013
Decision Date: 18 November 2013
Before: Bathurst CJ, McColl JA, Barrett JA
Decision:

1 Order that Indra Heslop-Blochowiak and Xavier Connor Heslop-Kelly by their Tutor Liam Kelly be joined as second and third respondents to the proceedings.
2 Grant leave to the second and third respondents to file a Notice of Cross Appeal in the terms of the Draft Notice of Cross Appeal annexed to the submissions of the second and third respondents dated 13 November 2013.
3 Grant leave to the appellant to amend her notice of appeal to raise the matters referred to in paragraphs 4 and 7 of the Draft Notice of Cross Appeal of the second and third respondents.
4 Direct that on or before 25 November 2013 the second and third respondents:-
(a) file a Statement of Facts and Contentions in support of the matters raised in the Draft Notice of Cross Appeal; and
(b) file any evidence on which it seeks to rely in support of such statement.
5 Direct that on or before 9 December each of the appellant and the first respondent file:-
(a) a reply to the Statement of Facts and Contentions referred to in paragraph 4(a); and
(b) file any evidence in support of such reply.
6 Standover proceedings for directions on 12 December 2013 before McColl JA.
7 Reserve all questions of costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords: PRACTICE - parties - joinder - where appellant sought to enforce promise by deceased to create trusts to benefit her children - children not parties at trial - where primary judge found appellant settled that claim among others during deceased's lifetime - where appellant sought to challenge that finding - whether children should be joined on appeal - whether children directly affected by relief sought - whether appellant could properly represent children as potential beneficiaries of trust - where children sought to argue that appellant to deceased's knowledge may have breached fiduciary duties as trustee of chose in action held in trust for children if settlement effective by releasing children's claims - Uniform Civil Procedure Rules 6.24, 51.4
Legislation Cited: Civil Procedure Act 2005
Conveyancing Act 1919
Supreme Court Act 1970
Uniform Civil Procedure Rules
Cases Cited: Alexander v Perpetual Trustees WA Ltd [2004] HCA 7; (2004) 216 CLR 109
Coulls v Bagot's Executor & Trustee Co Ltd [1967] HCA 3; (1967) 119 CLR 460

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Details
AGLC
Ashton v Pratt [2013] NSWCA 400
Case
[2013] NSWCA 400
Decision Date

CaseChat Overview and Summary

The appeal concerned a dispute between the appellant, Ms Ashton, and the estate of a deceased, Mr Pratt, regarding an alleged promise by Mr Pratt to create trusts for the benefit of Ms Ashton's children. The primary judge had found that Ms Ashton had settled this claim, among others, during Mr Pratt's lifetime. Ms Ashton sought to challenge this finding on appeal. The appeal was heard by Bathurst CJ, McColl and Barrett JJA of the Court of Appeal of New South Wales.

The central legal issue before the Court of Appeal was whether the deceased's grandchildren, Indra Heslop-Blochowiak and Xavier Connor Heslop-Kelly, should be joined as parties to the appeal. This question arose because the grandchildren were potential beneficiaries of the trusts Mr Pratt had allegedly promised to create, and their interests could be directly affected by the relief sought by Ms Ashton. A further issue was whether Ms Ashton could adequately represent the interests of the grandchildren, particularly in light of arguments that she might have breached fiduciary duties as a trustee of a chose in action held for their benefit if the settlement was effective.

The Court reasoned that the grandchildren were directly affected by the relief sought by the appellant, as the outcome of the appeal could determine whether they would receive the benefit of the promised trusts. Consequently, the Court considered it necessary for them to be joined as parties to ensure their interests were properly represented. The Court also granted leave for the grandchildren to file a notice of cross-appeal and for the appellant to amend her notice of appeal to address matters raised in the cross-appeal. Directions were given for the filing of further pleadings and evidence, and the proceedings were stood over for further directions.

Orders

Orders of the court

1 Order that Indra Heslop-Blochowiak and Xavier Connor Heslop-Kelly by their Tutor Liam Kelly be joined as second and third respondents to the proceedings.

2 Grant leave to the second and third respondents to file a Notice of Cross Appeal in the terms of the Draft Notice of Cross Appeal annexed to the submissions of the second and third respondents dated 13 November 2013.

3 Grant leave to the appellant to amend her notice of appeal to raise the matters referred to in paragraphs 4 and 7 of the Draft Notice of Cross Appeal of the second and third respondents.

4 Direct that on or before 25 November 2013 the second and third respondents:-

(a) file a Statement of Facts and Contentions in support of the matters raised in the Draft Notice of Cross Appeal; and

(b) file any evidence on which it seeks to rely in support of such statement.

5 Direct that on or before 9 December each of the appellant and the first respondent file:-

(a) a reply to the Statement of Facts and Contentions referred to in paragraph 4(a); and

(b) file any evidence in support of such reply.

6 Standover proceedings for directions on 12 December 2013 before McColl JA.

7 Reserve all questions of costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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