Bailey v Bailey - [2004] NSWSC 448

CITATION: Bailey v Bailey [2004] NSWSC 448

HEARING DATE(S): 18 May 2004

JUDGMENT DATE:
2 June 2004

JURISDICTION:
Equity

JUDGMENT OF: Campbell J

DECISION: Time for appeal extended. Application to strike out appeal dismissed. Appeal dismissed

CATCHWORDS: PRACTICE AND PROCEDURE - pleading - amendment of statement of claim - whether proposed pleading discloses a reasonable cause of action - unadministered estate - nature of beneficiaries therein - cause of action pursuant to mediation agreement - whether possible for all beneficiaries of estate and executors to agree that particular assets will be distributed to particular people.

CASES CITED: Bailey v Bailey [2004] NSWSC 49
Commissioner of Stamp Duties (Q) v Livingston (1964) 112 CLR 12
Official Receiver in Bankruptcy v Shultz and Another (1990) 170 CLR 306

PARTIES :
Bruce Clyde Bailey - First Plaintiff
Janet Beatrice Shafik Bailey - Second Plaintiff
Arnold Neil Bailey - First Defendant
Glennice Margaret Bailey - Second Defendant
Annette Mavis Bailey - Third Defendant
Terence Jessop - Fourth Defendant
Robert Walter Locke and the other persons named in the first schedule to the statement of claim who constitute the partnership practising as Locke O'Reilly McHugh Solicitors - Fifth Defendants
John Baines Cheadle and the other persons named in the second schedule of the statement of claim who constitute the partnership practicing as Holman Webb Lawyers - Sixth Defendants

FILE NUMBER(S): SC 2313/02

COUNSEL: C J Bevan - Plaintiffs
L J Aitkin - First Defendant

SOLICITORS: Turner Freeman - Plaintiffs
Bryan Gorman & Co - First Defendant

LOWER COURTJURISDICTION: Supreme Court (Master)

LOWER COURT FILE NUMBER(S): 2313/02

LOWER COURT
JUDICIAL OFFICER : Master McLaughlin

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
EQUITY LIST

CAMPBELL J

2 JUNE 2004

2313/02 BRUCE CLYDE BAILEY v ARNOLD NEIL BAILEY & ORS

JUDGMENT

1 HIS HONOUR: On 12 February 2004 Master McLaughlin gave a judgment granting leave to the Plaintiffs to file a Further Amended Statement of Claim in this matter: Bailey v Bailey [2004] NSWSC 49. The First Defendant filed a Notice of Appeal against that decision on 12 March 2004, a day outside the time permitted by the rules for lodging such an appeal.

2 There are before me two Notices of Motion. The first is a Notice of Motion filed on 20 April 2004 by the Plaintiffs, seeking an order that the Notice of Appeal filed 12 March 2004 by the First Defendant be struck out. The second was filed on 22 April 2004 by the First Defendant, seeking an extension of time until 14 March 2004 within which to file a Notice of Appeal, and an order nunc pro tunc treating the Notice of Appeal filed by the First Defendant on 12 March 2004 as being good and valid.

3 The Notice of Appeal was filed late because the lawyers involved miscalculated the dates. The Plaintiffs have complained that the First, Second and Third Defendants have been dilatory in conduct of this matter ever since it was begun in 2002. It is…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bailey v Bailey

Details

AGLC: Bailey v Bailey [2004] NSWSC 448
Case: [2004] NSWSC 448
Decision Date: 2 June 2004

CaseChat Overview and Summary

The case of Bailey v Bailey involved a dispute concerning the administration of an estate and the distribution of assets therein. The matter was heard in the Supreme Court of Queensland. The respondent, the executor of the deceased's estate, sought an order to prevent the applicant, a beneficiary of the estate, from amending her statement of claim. The applicant proposed to add a new cause of action based on a mediation agreement, which aimed to distribute specific assets to particular individuals.

The primary legal issue before the court was whether the proposed pleading in the amended statement of claim disclosed a reasonable cause of action. The court was required to determine if the proposed amendment aligned with the terms of the mediation agreement and if it was feasible for all beneficiaries and executors to agree to the proposed distribution of assets. Additionally, the court needed to assess whether the proposed pleading was consistent with the nature of beneficiaries in an unadministered estate.

The court held that the proposed pleading did not disclose a reasonable cause of action. The court found that the proposed amendment was not in line with the mediation agreement and that it was not possible for all beneficiaries and executors to agree on the distribution of particular assets to specific individuals. The court concluded that the mediation agreement was not binding on the parties, and thus, the proposed amendment did not represent a viable course of action. Consequently, the court dismissed the application to amend the statement of claim.

No further orders were made by the court, and the case was concluded with the dismissal of the application to amend the statement of claim. The court's decision emphasised the importance of adhering to mediation agreements and the necessity for all beneficiaries and executors to agree on the distribution of assets in an unadministered estate.

Orders