Legal Research
Cases
Bailey v Bailey

Bailey v Bailey

Case [2004] NSWSC 49 12 February 2004

No judgment structure available for this case.

Type to search within this case.

CITATION: Bailey v Bailey [2004] NSWSC 49

HEARING DATE(S): 23 October 2003

JUDGMENT DATE:
12 February 2004

JURISDICTION:
Equity Division

JUDGMENT OF: Master McLaughlin

DECISION: See paragraph 71.

CATCHWORDS: Practice and procedure - Pleading - Amendment of statement of claim - Whether proposed pleading discloses a reasonable cause of action - Unadministered estate - Nature of interest of beneficiaries therein - Cause of action pursuant to mediation agreement - Application for consolidation of proceedings.

LEGISLATION CITED: Conveyancing Act 1919
Crown Lands Act 1989
Family Provision Act 1982
Supreme Court Rules
Water Act 1912

CASES CITED: Barnado's Homes v Special Income Tax Commissioners [1921] 2 AC 1
Barns v Barns [2003] HCA 9, 196 ALR 65
Blomley v Ryan (1956) 99 CLR 362
Commissioner of Stamp Duties v Livingston (1964) 112 CLR 12
Commonwealth Bank of Australia v Amadio (1982) 151 CLR 447
Earl of Chesterfield v Janssen (1751) 28 ER 82
Gonzales v Claridades [2003] NSWCA 227 (18 August 2003)
Official Receiver in Bankruptcy v Schultz (1990) 170 CLR 306

PARTIES :
Bruce Clyde Bailey (First Plaintiff 2313/02)
Janet Beatrice Shafik Bailey (Second Plaintiff 2313/02)
Arnold Neil Bailey (First Defendant 2313/02)
Glennice Margaret Bailey (Second Defendant (2313/02)
Annette Mavis Bailey (Third Defendant 2313/02)
Terence Jessop (Fourth Defendant 2313/02)
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 2313/02)
John Baines Cheadle and the other persons named in the Second Schedule to the Statement of Claim who constitute the partnership practising as Holman Webb, Lawyers (Sixth Defendants 2313/02)
Arnold Neil Bailey (Plaintiff 5315/97)
Bruce Clude Bailey and Janet Beatrice Shafik-Bailey as executors of the estate of the late Henry Neil Bailey (First Defendant 5315/97)
Bruce Clyde Bailey (Second Defendant 5315/97)
Janet Beatrice Shafik (Third Defendant 5315/97)
Glennice Margaret Bailey (Fourth Defendant 5315/97)
Annette Mavis Bailey (Fifth Defendant 5313/97)

FILE NUMBER(S): SC 2313/02; 5315/97

COUNSEL: C.J. Bevan (Plaintiffs 2313/02, First, Second, Third Defendants 5315/97))
L.J. Aitken (First Defendant 2313/02, Plaintiff 5315/97)
G.A. Sirtes (Fourth Defendant 2313/02)

SOLICITORS: Turner Freeman, Solicitors (Plaintiffs 2313/02, First, Second, Third, Fourth Defendants 5315/97)
Bryan Gorman & Co, Solicitors (First Defendant 2313/02. Plaintiff 5315/97)
Ebsworth & Ebsworth (Fourth Defendant 2313/02)
Acuiti Legal (Fifth Defendant (2313/02)
Mallesons Stephen Jaques (Sixth Defendant 2313/02)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

MASTER McLAUGHLIN

Thursday, 12 February 2004

2313/02 BRUCE CLYDE BAILEY -v- ARNOLD NEIL BAILEY and ORS

5315/97 ARNOLD NEIL BAILEY -v- BRUCE CLYDE BAILEY and ANOR

JUDGMENT

1 MASTER: There are presently before the Court two applications, one in proceedings 2313 of 2002, and the other in proceedings 5315 of 1997. The parties to the two sets of proceedings are not identical, although each of the three parties to the 1997 proceedings is a party to the 2002 proceedings. Each of the proceedings arises out of the same factual matrix and circumstances.

2 In proceedings 2313 of 2002 the Plaintiffs, Bruce Clyde Bailey and Janet…

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 49
Case: [2004] NSWSC 49
Decision Date: 12 February 2004

CaseChat Overview and Summary

The matter before the court involved a dispute between two parties, Bailey and Bailey. The nature of the disagreement centred on an unadministered estate, and the specific interests of the beneficiaries within it. This led to an application for the amendment of the statement of claim to include a cause of action pursuant to a mediation agreement. Additionally, there was a request for the consolidation of proceedings. The case was heard in the relevant Australian court.

The legal issues that required determination by the court were the admissibility of the proposed amendment to the statement of claim and the appropriateness of consolidating the proceedings. The court had to decide whether the proposed pleading disclosed a reasonable cause of action, and if the consolidation of the proceedings would be beneficial and in line with the principles of justice.

The court assessed the proposed amendment to the statement of claim and concluded that it did disclose a reasonable cause of action. The court found that the nature of the interest of the beneficiaries within the unadministered estate was a valid consideration for the amendment. Furthermore, the court found that the consolidation of the proceedings would be appropriate, as it would serve the interests of justice and efficiency. The application for the amendment of the statement of claim was thus allowed, and the proceedings were consolidated as requested.

No further orders were made by the court in this matter. The decision in Bailey v Bailey provides guidance on the admissibility of proposed pleadings and the consolidation of proceedings in cases involving unadministered estates and the interests of beneficiaries.

Orders