Cisera v Cisera (No 2)
[2023] NSWSC 1531
•08 December 2023
Supreme Court
New South Wales
Medium Neutral Citation: Cisera v Cisera (No 2) [2023] NSWSC 1531 Hearing dates: 8 December 2023 Date of orders: 8 December 2023 Decision date: 08 December 2023 Jurisdiction: Equity - Expedition List Before: Parker J Decision: See [10]
Catchwords: CIVIL PROCEDURE – variation of trusts – constitution of proceedings – Court concludes application requires a contradictor to be finally dealt with on their merits – plaintiffs decline to appoint a contradictor – proceedings struck out
Legislation Cited: Trustee Act 1925, Pt 3 Div 3A
Cases Cited: Cisera v Cisera [2023] NSWSC 1507
Texts Cited: Nil
Category: Consequential orders Parties: John Anthony Cisera (First Plaintiff)
Sang Hee Shin (Second Plaintiff)
Mario Cisera (Third Plaintiff)
Cisera Holdings Pty Limited (Fourth Plaintiff)
Ryan Bada Cisera by his Tutor (First Defendant)
Ruby Sarang Cisera by her Tutor (Second Defendant)Representation: Counsel:
Solicitors:
E Young (Plaintiffs)
S O’Rourke, Solicitor (Defendants)
Antcliffe Scott (Plaintiffs)
O’Rourke & Associates (Defendants)
File Number(s): 2023/277785 Publication restriction: Nil
JUDGMENT
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Earlier today, these proceedings were before me for mention following the delivery of my judgment earlier this week: Cisera v Cisera [2023] NSWSC 1507 (“J1”). Following a debate with counsel, I ordered that the proceedings be struck out. This judgment sets out my reasons for making that order.
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The background to the proceedings is set out in J1 at [6]-[37]. They involved an application under Division 3A of Part 3 of the Trustee Act 1925 for approval of a Deed of Family Arrangement which would have the effect of amending the terms of a discretionary family trust (“the Trust”) which is just about to reach its vesting date. Consent was sought on behalf of two family members (“Ryan” and “Ruby”) who are minors and who were named as the first and second defendants: see J1 [64].
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An independent solicitor acted for Ryan and Ruby, but effectively supported the application. The proceedings have thus proceeded so far without the benefit of a contradictor party.
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As I recorded in my judgment, based on the evidence and submissions presented to me, I was not satisfied that the Court had power to make the order sought in the application. I was also not satisfied, without having heard from a contradictor, that the requirement that the arrangement be for the benefit of Ryan and Ruby was satisfied. In the course of my judgment, I also raised various other points about Division 3A of Part 3 of the Trustee Act which I considered might justify further consideration.
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These conclusions were not final. I indicated in my judgment that I was open to further argument. But I considered that any such further argument should only take place after a contradictor had been appointed. The only order I made was to fix the proceedings for mention in today’s list to enable the first, second and third plaintiffs, who are the proponents of the arrangement, to consider their position.
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At today’s hearing, the plaintiffs were represented by counsel, who also mentioned the appearance of the solicitor for Ryan and Ruby.
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Counsel asked me to make orders disposing of the application. Counsel stated that the plaintiffs maintained that, on the material before the Court, the application should be granted, but did not present any further argument in response to the preliminary views, and the points I had raised, in my judgment. Counsel appeared to accept that, based on what I had said in my judgment, I would dismiss the application. Counsel was however not prepared to discontinue the proceedings, or to have them dismissed on the plaintiffs’ application.
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As I have stated, I made it plain in my judgment that I did not regard the application as having been finally dealt with; it was simply that I considered that it should not continue any further without a contradictor. But counsel made it quite clear that the plaintiffs were not prepared to take the steps required to appoint a contradictor, or to bear any of the costs which might be involved in doing so.
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In these circumstances, I was not prepared to dispose of the proceedings on their merits. Given the impasse, I could see no alternative but to strike the proceedings out. I put this to counsel, and he did not suggest any alternative.
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The order of the Court was:
Order that the proceedings be struck out.
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Decision last updated: 08 December 2023