Douglas v James - [2015] NSWSC 1403

Supreme Court

New South Wales

Case Name:	Douglas v James
Medium Neutral Citation:	[2015] NSWSC 1403
Hearing Date(s):	30 July 2015
Date of Orders:	28 September 2015
Decision Date:	28 September 2015
Jurisdiction:	Equity
Before:	Slattery J
Decision:	See paragraphs [106] and [107].
Catchwords:	COSTS – costs inter partes of motion filed following Court’s judgment – where motion brought despite signals of potential cooperation from one respondent – where one respondent had acted incompatibly with Court’s judgment – indemnity costs – where third party investment platform provider received contradictory instructions from some of several trustees who were required to act jointly – third party defensively restricted access for all trustees – where motion initially sought orders respondent could not technically carry out and respondent engaged in correspondence to vary orders sought.
Legislation Cited:	Civil Procedure Act 2005, Part 6, Division 1 Uniform Civil Procedure Rules 2005, r 42.25 Succession Act 2006
Cases Cited:	Douglas v James [2015] NSWSC 299 Douglas v James (No. 2) [2015] NSWSC 969 Foots v Southern Cross Mine Management Pty Ltd (2007) 234 CLR 52 In re Jones; Christmas v Jones [1897] 2 Ch 190 Katter v Melhem [2015] NSWCA 213 Leichhardt Municipal Council v Green [2004] NSWCA 341 Luke v South Kensington Hotel Company (1879) 11 Ch D 121 Mead v Watson [2005] NSWCA 133 Osborne v Smith (1961) 105 CLR 153 Re Spurling’s Will Trusts [1966] 1 WLR 920 Sahab Holdings Pty Ltd v Registrar-General and Castle Constructions (2009) 75 NSWLR 629 Sky v Body (1970) 92 WN (NSW) 934 Tatham v Huxtable (1950) 81 CLR 639 and Walters v Woodbridge (1878) 7 Ch D 504
Category:	Consequential orders (other than Costs)
Parties:	First Applicant: Zeta Kathleen Douglas Second Applicant: Marea Gilbert First Respondent: David Anthony James Second Respondent: Janina Kik Third Respondent: Darron Mink Fourth Respondent: Pinnacle Financial and Investment Services Pty Ltd ACN 003811890 Fifth Respondent: NMMT Limited ACN 058835573
Representation:	Counsel: Applicants: L. Ellison SC First and Second Respondents: D. Allen Third and Fourth Respondents: R. Harper SC Fifth Respondent: Ms M. Cairns Solicitors: Applicants: Adrian Stuart Holmes, Adrian Holmes Lawyer First and Second Respondents: Jim Kekatos, Kekatos Lawyers Third and Fourth Respondent: David John Berryman, Berryman Partners Fifth Respondent: Luke Buchanan, Clayton Utz
File Number(s):	2014/107434
Publication Restriction:	No

JUDGMENT

This is the Court’s third judgment in this litigation. McDougall J first heard these proceedings on 9 March 2015 and gave his principal judgment on 25 March 2015: Douglas v James [2015] NSWSC 299. His Honour then considered issues of costs on the papers and gave judgment on 22 July 2015: Douglas v James (No. 2) [2015] NSWSC 969.
But between McDougall J’s principal judgment and his second judgment the plaintiffs filed a motion for an account consequent upon McDougall J’s conclusions in the principal judgment. This third judgment deals with that motion. Much of the contest on the motion was settled. The parties are now arguing about issues of costs of the motion, although it has been…

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 Douglas v James

Details

AGLC: Douglas v James [2015] NSWSC 1403
Case: [2015] NSWSC 1403
Decision Date: 28 September 2015

CaseChat Overview and Summary

The case of Douglas v James involved a dispute between several parties, including Douglas, a trustee, and James, another party. The dispute arose from a complex situation where a third-party investment platform provider received conflicting instructions from some of the trustees, who were required to act jointly. This led to the platform provider restricting access for all trustees. Douglas filed a motion following the court's judgment, despite signals of potential cooperation from one of the respondents. However, one of the respondents had acted incompatibly with the court's judgment.

The legal issues that the court was required to decide included the costs inter partes of the motion filed following the court's judgment, and whether indemnity costs were appropriate in light of the actions of one respondent. The court also needed to determine whether the third party investment platform provider had acted appropriately in restricting access for all trustees, given the conflicting instructions it had received.

The court's reasoning and outcome were based on the conduct of the parties involved. The court found that despite signals of potential cooperation from one respondent, the motion was still brought, and one respondent had acted incompatibly with the court's judgment. The court also found that the third party investment platform provider had acted appropriately in restricting access for all trustees, given the conflicting instructions it had received. As a result, the court ordered that indemnity costs be paid by the party that had acted incompatibly with the court's judgment. The court also made orders to ensure that the trustees acted jointly in future and to provide clarity on the platform provider's role in the dispute.

Orders