Dresler v Mrish

[1999] NSWSC 316

CITATION:	Dresler v Mrish [1999] NSWSC 316 revised - 31/08/99
CURRENT JURISDICTION:	Equity Division
FILE NUMBER(S):	3402/93
HEARING DATE(S):	8 April 1999
JUDGMENT DATE:	8 April 1999
PARTIES :	Mark Oliver Dresler (P) George Mrish (D1) Lawhouse Pty Limited (D2) Registrar General (D3)
JUDGMENT OF:	Master McLaughlin

COUNSEL :	Mr. J. Van Aalst (P) Mr. P. Newton (D)
SOLICITORS:	Hardings (P) Philip J. Beazley (D)
CATCHWORDS:
DECISION:

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SUPREME COURT OF
NEW SOUTH WALES
EQUITY DIVISION

MASTER McLAUGHLIN

Thursday, 8 April 1999.

3402/93 MARK OLIVER DRESLER -v-
GEORGE MRISH & 2 ORS

1 MASTER: On 30 November 1998, the plaintiff Mark Dresler filed a notice of motion seeking, substantively, summary judgment upon his claim, which originally had been instituted by summons and which subsequently had been the subject of a statement of claim filed on 29 July 1997.
2 That notice of motion was on 24 February 1999 specially fixed to be heard by me this day, 8 April 1999.
3 On 12 March 1999 Donna Marie Mrish filed a notice of motion by which she sought to be substituted for the first defendant George Mrish. It should here be noted that the first defendant is now deceased, he having died by his own hand on 29 July 1998.
4 The applicant, Donna Marie Mrish was not in a position to proceed on 12 March 1999, and the notice of motion filed by her was stood over to 26 March 1999. After a contested hearing on that date, I made certain orders upon that notice of motion. Those orders included the following:
I order that the applicant Donna Marie Mrish be permitted to represent the interests of the first defendant, now deceased, in relation to any claim by the plaintiff against the asset referred to in item 4 of the inventory of property which is Annexure C to the affidavit of Phillip James Beazley sworn 26 March 1999, but that the applicant not otherwise be permitted to participate in the proceedings.
5 When the matter was called upon for hearing this morning, Counsel for the applicant filed in Court a notice of motion by Donna Marie Mrish by which the applicant sought, substantively an order that today's hearing be vacated and an order that the applicant be appointed to represent the estate of the first defendant, George Mrish, for the purposes of the present proceedings.
6 It will be appreciated that the second of those applications, the appointment of the applicant to represent the estate of the first defendant, is an application in substance identical to that which was heard and determined less than two weeks ago, on 26 March 1999.
7 The evidence which has been placed before the Court in support of the applicant's present application discloses that the applicant has now obtained a grant of Letters of Administration of the intestate estate of the first defendant George Mrish, that grant having been made yesterday, 7 April 1999.
8 Otherwise, there has been no change in the circumstances which obtained when the Court determined the identical application of the plaintiff on 26 March 1999.
9 The evidence, however, does disclose several matters which were not before the Court on the earlier occasion. One of them is the degree of knowledge of the applicant concerning the nature of the relationship between her then husband, the first defendant, and the parents and brother of the plaintiff. Those three persons were the victims of the first defendant, who was subsequently convicted of murdering each of those persons.
10 The evidence also discloses, contrary to the clear impression given to the Court by the earlier affidavit evidence filed on behalf of the applicant, that on 21 January 1999, the present solicitor for the applicant had knowledge of the substance of the plaintiff's and also had copies of the pleadings in the proceedings.
11 It does, however, now appear that an asset which is being claimed by the applicant as an asset in the estate of the deceased (other than the asset which was the subject of the order made on 26 March 1999) is also now an asset which is the subject of the present proceedings. That asset is property at Orange, being situate at and known as 55 Dalton Street, Orange.
12 There was doubt as to whether that property claimed as an asset in the estate of the first defendant was the same property which was the subject of a claim by the plaintiff in the present proceedings. When the matter was before me on 26 March the evidence did not disclose the identicality of that property with property against which the plaintiff is seeking relief in the substantive proceedings.
13 It seems to me, however, appropriate that in the present application of the applicant I should allow the applicant to participate in the proceedings, not merely in relation to the claim of the plaintiff against the asset referred to in the order of 26 March 1999, but additionally against the further asset, being the property at Orange referred to in the inventory of property under the heading Real Property as item 1(b).
14 I propose to make an order in that direction. But otherwise the applicant will not be permitted to participate generally in the proceedings. I refuse the application for a vacation of today's hearing date.
15 I make the following orders:
1. I order that the order made by me on 26 March 1999 be varied by substituting for the words "the asset referred to in item 4" the words "the assets referred to in item 1(b) and item 4".

2. I order that the costs of the notice of motion filed by the applicant, Donna Marie Mrish on 8 April 1999 be the costs of the plaintiff in the proceedings.

I certify that this and the preceding
pages are a true copy of the reasons for
judgment of Master McLaughlin
Dated: 8 April 1999
Associate
Mark A. Provera

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Last Modified: 06/30/2000