Bailey v Boyd - [2018] NSWSC 477

Supreme Court

New South Wales

Medium Neutral Citation: Bailey v Boyd [2018] NSWSC 477
Hearing dates: 29 March 2018; 12 April 2018
Date of orders: 12 April 2018
Decision date: 12 April 2018
Jurisdiction: Common Law
Before: N Adams J
Decision:
(1) Pursuant to UCPR r 14.28, the joint defence filed and served by the first and second defendant on 25 February 2018 is struck out.

(2) Judgment for the plaintiff against the first and second defendant for possession of the property comprised in 10/DP28150 being the land situated at 12 Fletcher Avenue Miranda.

(3) That the defendants pay the plaintiff’s costs of the motion on 29 March 2018 and 11 April 2018 on an indemnity basis.
(4) That the defendants pay the plaintiff’s costs of the proceedings generally on the ordinary basis
Catchwords: REAL PROPERTY – trustees appointed to sell the defendants’ residence following a finding that moneys paid into the mortgage were obtained by way of an unconscionable gift - where defendants resist sale as they disagree with binding court orders confirmed by the Court of Appeal – where no special leave to appeal to the High Court sought - whether defence should be struck out for untenable grounds – whether summary judgment should be granted – whether indemnity costs should be ordered
Legislation Cited: Civil Procedure Act 2005 (NSW), s 98
Conveyancing Act 1919 (NSW), s 66G
Uniform Civil Procedure Rules, rr 13.1, 13.4, 14.28
Cases Cited: Boyd v Thorn [2017] NSWCA 210
Catherine Margaret Thorn, as Executrix of the Estate of the late Berry McAuley v Ian Geoffrey Boyd [2014] NSWSC 1159
Catherine Margaret Thorne, as executrix of the Estate of the late Betty McAuley v Ian Geoffrey Boyd and Dawn Kathleen Boyd [2016] NSWSC 1344
Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225; [1993] FCA 801
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69
John Alexander’s Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1; [2010] HCA 19
Spellson v George (1992) 26 NSWLR 666
State of New South Wales v Williams (2014) 242 A Crim R 22; [2014] NSWCA 177
Category: Principal judgment
Parties: Liam Bailey (First Plaintiff)
Timothy Daley (Second Plaintiff)
Ian Geoffrey Boyd (First Defendant)
Dawn Kathleen Boyd (Second Defendant)
Representation:
Counsel:
Mr A Cornish (Plaintiff)
Mr D Raphael (First and Second Defendant)
Solicitors:
Cappello Rowe Lawyers (Plaintiff)
Penhall & Co Lawyers (First and Second Defendant)

File Number(s): 2017/342720
Publication restriction: Nil

Judgment (REVISED FROM EX TEMPORE)

By statement of claim filed on 13 November 2017, the plaintiffs, Liam Bailey and Timothy Daley, seek possession of the land comprised in 10/DP28150 being the land situated at 12 Fletcher Avenue Miranda (”the property”). Mr Bailey and Mr Daley are trustees appointed as trustees for the sale of the property by Sackar J on 22 September 2016: Catherine Margaret Thorne, as executrix of the Estate of the late Betty McAuley v Ian Geoffrey Boyd…

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 Boyd

Details

AGLC: Bailey v Boyd [2018] NSWSC 477
Case: [2018] NSWSC 477
Decision Date: 12 April 2018

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, the case of Bailey v Boyd involved a dispute regarding the sale of a property owned by the defendants, which was to be carried out by trustees appointed following a determination that the mortgage payments were made through an unconscionable gift. The defendants contested the sale despite the binding court orders confirmed by the Court of Appeal. They sought to argue that the sale should not proceed, even though no application for special leave to appeal to the High Court had been made. The central legal issues revolved around whether the defendants' defence was so untenable that it should be dismissed and whether the plaintiff was entitled to summary judgment. Additionally, the court had to consider whether indemnity costs should be awarded to the plaintiff.

The court examined the defendants' arguments, which were based on their disagreement with the binding orders and their contention that they should not be bound by them. The court found that the defendants' defence was not only untenable but also an abuse of the court process. Given that the defendants had not sought leave to appeal the decision of the Court of Appeal, their argument lacked merit. The court held that the plaintiff's application for summary judgment should be granted because the defendants had no viable defence. Furthermore, the court determined that the defendants' conduct warranted the imposition of indemnity costs in favour of the plaintiff.

As a result, the court dismissed the defendants' defence and granted the plaintiff summary judgment. The court also ordered the defendants to pay the plaintiff's costs on an indemnity basis. This decision reinforced the principle that parties must abide by binding court orders unless there are valid grounds for appeal, and it underscored the court's authority to impose costs on parties who engage in frivolous litigation. The final orders reflected the court's determination that the sale of the property should proceed as ordered, with the defendants bearing the costs of the litigation.

Orders