Caldar v Public Trustee

[2003] NSWCA 187

NEW SOUTH WALES COURT OF APPEAL

CITATION:      CALDAR v PUBLIC TRUSTEE & ORS [2003]  NSWCA 187

FILE NUMBER(S):
40345/03

HEARING DATE(S):            7 July 2003

JUDGMENT DATE: 07/07/2003

PARTIES:
Russell Caldar (Estate of the late Mrs Rachel Isabell Gittoes)
v
Public Trustee of New South Wales and
Allan Ramon Gittoes and
Registrar-General, Land and Property Information Office

JUDGMENT OF:      Handley JA Ipp JA Tobias JA   

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S):        ED 121784/02, ED 119481/01

LOWER COURT JUDICIAL OFFICER:     Santow JA, Campbell J, Barrett J

COUNSEL:
Appellant: Mr Caldar in person
Respondent 1: I R Rugless, Solicitor, for Public Trustee
Respondent 2: No appearance
Respondent 3: G Channell, Solicitor, for Registrar-General

SOLICITORS:
Appellant: In person
Respondent 1: Gibson Owen Lawyer, Inc
Respondent 2: No appearance
Respondent 3: K C Hall, Solicitor for Registrar-General

CATCHWORDS:
APPEAL - interlocutory judgment or order - refusal to set aside grant of administration in common form interlocutory

LEGISLATION CITED:
Supreme Court Act

DECISION:
Appeal be struck out as incompetent.  Opponent pay the claimants' costs of notices of motion of 12 and 16 June
Notice of motion dated 6 June to review the orders of Santow JA dismissed with costs.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

40345/03
ED 121784/02    ED 119481/01

HANDLEY JA
IPP JA
TOBIAS JA

7 July 2003

RUSSELL CALDAR  v  PUBLIC TRUSTEE OF NSW & ORS

Judgment

1. HANDLEY JA:  The Court has before it a notice of motion filed on behalf of the Public Trustee on 12 June, and another notice of motion filed on behalf of Land and Property Information New South Wales on 16 June, which seek orders that Mr Caldar’s notice of appeal filed on 29 April from the judgment of Campbell J of 28 April be dismissed as incompetent.  Those summonses are supported by the affidavits of Margaret Pringle of 24 June, in support of the notice of motion by the Public Trustee, and of Anna Brann of 27 June, in support of the notice of motion by Land and Property Information.

2. The Court has also been furnished with a chronology of events since Mr Caldar filed his first probate caveat in December 2001.

3. The orders sought in the notice of appeal from Campbell J are that the Letters of Administration granted to the Public Trustee be revoked, an order for costs, damages against the Public Trustee and Mr Gittoes and an order that a caveat lodged against the title to the real estate forming the principal asset of the estate of Mr Caldar’s deceased mother be reinstated. 

4. Section 101(2) of the Supreme Court Act provides that an appeal shall not lie to the Court of Appeal except by leave of the Court of Appeal from (e) an interlocutory judgment or order in proceedings in the Court; and (r) a final judgment or order in proceedings in the Court other than an appeal that involves a matter at issue amounting to or to the value of $100,000.

5. A grant of…