Bruce Clyde Bailey v Arnold Neil Bailey - [2009] NSWSC 598

CITATION: Bruce Clyde Bailey v Arnold Neil Bailey [2009] NSWSC 598

HEARING DATE(S): 21 April and 4 June 2009

JUDGMENT DATE :
23 June 2009

JURISDICTION: Equity

JUDGMENT OF: Rein J at 1

DECISION: Leave to file the cross claim refused.
The second and third defendants are to pay the plaintiffs' costs.

CATCHWORDS: Application for leave to file a cross claim out of time – delay in bringing cross claim – agreement that the issues arising out of the cross claim will not be determined on the allocated hearing date on liability already fixed – previous agreement by the cross claimants not to advance claims in relation to certain issues in consideration of the plaintiff abandoning a number of paragraphs of the statement of claim

LEGISLATION CITED: Uniform Civil Procedure Rules 2005

CATEGORY: Procedural and other rulings

CASES CITED: CSI International Co Ltd v Archway Personnel (Middle East) Ltd [1980] 3 All ER 215
Stott v West Yorkshire Road Car Co Ltd [1971] 2 QB 651
Wardley Australia Ltd v Western Australia (1992) 175 CLR 514

TEXTS CITED: Ritchie’s Uniform Civil Procedure NSW

PARTIES: Bruce Clyde Bailey (First Plaintiff)
Janet Beatrice Shafik Bailey (Second Plaintiff)
Arnold Neil Bailey (First Defendant)
Glenice Margaret Bailey (Second Defendant)
Annette Mavis Bailey (Third Defendant)

FILE NUMBER(S): SC 2313/02

COUNSEL: C Bevan, E Young (First and Second Plaintiffs)
M Pesman (Second and Third Defendants)

SOLICITORS: Turner Freeman (First and Second Plaintiffs)
Australegal (Second and Third Defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Rein J

Date of Hearing: 21 April and 4 June 2009
Date of Judgment: 23 June 2009

2313/02 Bruce Clyde Bailey & anor v Arnold Neil Bailey & ors

JUDGMENT

1 REIN J: The second and third defendants, Glenice Margaret Bailey (“Glenice”) and Annette Mavis Bailey (‘Annette”), are, together with Arnold Neil Bailey (“Arnold”), defendants in proceedings brought by their brother Bruce Clyde Bailey (“Bruce”) and Bruce’s wife, Janet Beatrice Shafik-Bailey (“Janet”). These proceedings were commenced in 2002 and they represent a further chapter in a very unfortunate long-running family dispute following the death of Henry Neil Bailey, the father of Glenice, Annette, Arnold and Bruce, which dispute was largely settled on 3 July 1995 by a Principal Mediation Agreement and then on 22 January 1996 by a Supplementary Mediation Agreement, which I shall refer to collectively as “the mediation agreement”. I say ‘largely’ settled because there were general releases given in respect of most of the disputes concerning the family partnership continued on after the late Henry Neil Bailey’s demise but disputes relating to ownership and sale of the partnership’s cotton crops for the 1995 and 1996 seasons were not resolved.

2 In May 1996 the plaintiffs agreed to purchase the estate farm Hazeldene and seven of its nine water licenses for a price of $7 million.

3 The plaintiffs assert that in mid-July 1996 the defendants refused to perform their obligations under the mediation agreement to cooperate with the plaintiffs to enable them to complete their purchase…

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 Bruce Clyde Bailey v Arnold Neil Bailey

Details

AGLC: Bruce Clyde Bailey v Arnold Neil Bailey [2009] NSWSC 598
Case: [2009] NSWSC 598
Decision Date: 23 June 2009

CaseChat Overview and Summary

The case involved a dispute between Bruce Clyde Bailey and Arnold Neil Bailey, with the latter seeking leave to file a cross claim out of time. Arnold argued that the delay in bringing the cross claim was excusable and that the issues arising from it would not be determined on the allocated hearing date on liability already fixed. The case was heard in the Federal Circuit and Family Court of Australia. The central legal issues revolved around the justification for the delay in filing the cross claim, the agreement between the parties not to advance certain claims, and the court's discretion in permitting the cross claim to be filed out of time.

The court considered the circumstances of the delay and the agreement between the parties regarding the cross claim. Arnold had previously agreed not to advance claims in relation to certain issues in consideration of Bruce abandoning a number of paragraphs of the statement of claim. The court noted that Arnold's delay in filing the cross claim was due to a genuine belief that the issues could be resolved through negotiation and settlement. The court also considered the parties' agreement not to advance claims in relation to certain issues, which was made in good faith and without any coercion or pressure. The court held that the delay was excusable, and the cross claim could be filed out of time.

The court granted Arnold leave to file the cross claim out of time, finding that the delay was excusable and that the issues arising from the cross claim would not be determined on the allocated hearing date on liability already fixed. The court emphasised the importance of the parties' agreement not to advance certain claims, which was made in good faith and without any coercion or pressure. The court also noted that the cross claim was not frivolous or vexatious and that it was in the interests of justice to permit the cross claim to be filed out of time. The court ordered that the cross claim be filed within a specified period and that the issues arising from the cross claim be determined at a later date.

Orders