Cisera v Cisera Holdings Pty Ltd

[2016] NSWCA 319

Court of Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Cisera v Cisera Holdings Pty Ltd [2016] NSWCA 319
Hearing dates:	On the papers
Decision date:	22 November 2016
Before:	Leeming JA
Decision:	1. Dismiss paragraph 1 of the notice of motion filed 10 October 2016. 2. Direct that the proceedings be listed at a date to be fixed before a Registrar in the Equity Division.
Catchwords:	PRACTICE – removal into Court of Appeal – application to vary vesting date in trust deed – plaintiff wishes to challenge recent decision of Court of Appeal – absence of contradictor – no special circumstances
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 56 Supreme Court Act 1970 (NSW), ss 44, 46(2), 51(4) and (5) Trustee Act 1925 (NSW), s 81 Uniform Civil Procedure Rules 2005, r 1.21
Cases Cited:	Barton v Berman [1980] 1 NSWLR 63 Chand v Lifestyle Homes NSW Pty Ltd [2010] NSWCA 135 Guss v Veenhuizen (No 2) (1976) 136 CLR 47 Re Dion Investments Pty Ltd (2014) 87 NSWLR 753; [2014] NSWCA 367 Stein v Sybmore Holdings Pty Ltd [2006] NSWSC 1004 University of New South Wales v McGuirk [2008] NSWSC 369 Wilkie v Brown [2016] NSWCA 128
Category:	Consequential orders (other than Costs)
Parties:	Mario Natale Cisera (First applicant) John Anthony Cisera (Second applicant) Cisera Holdings Pty Limited (Respondent)
Representation:	Counsel: G Burton SC (Applicants)   Solicitors: Neil Scott Lawyers (Applicants)
File Number(s):	2016/273397

Judgment

1. LEEMING JA: Two directors of a corporate trustee commenced proceedings in the Equity Division in September 2016 seeking an order under s 81 of the Trustee Act 1925 (NSW) varying the vesting date of a trust established in 1974. Without a variation, the trust property will vest no later than 2024. There is evidence that the trustee holds substantial real property, and that vesting will give rise to a large CGT liability which, if the vesting date is extended, will be deferred.

2. On the first return date, the matter was placed by the Duty Judge in consultation with the President in the Registrar of the Court of Appeal’s list. The Duty Judge did not himself make an order under UCPR r 1.21 transferring the matter to the Court of Appeal. The Duty Judge advised senior counsel for the plaintiffs that he had spoken with the President, and there followed this exchange:

“HIS HONOUR: ... As I said, the Court of Appeal may look at the matter and say, ‘No, for other reasons we think there should be a first instance trial.’

BURTON: Yes.

HIS HONOUR: I think that depends on whether they perceive or accept or don’t accept the proposition that there is really no scope for factual issues that need to be determined. What they might do, there is another process, they may say, ‘We would require a contradictor before we decide whether it has to go back or not.’ The President made it clear to me that there is a possibility that they might refer it…