Fischer v Nemeske Pty Ltd (No 2)

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Fischer v Nemeske Pty Ltd (No 2) [2015] NSWCA 79
Hearing dates:	On the papers
Decision date:	07 April 2015
Before:	Beazley P; Barrett JA; Ward JA
Decision:	The appellant’s motion seeking re-opening is dismissed with costs.
Catchwords:	PROCEDURE – re-opening after judgment – application by unsuccessful appellants – no matter of principle.
Cases Cited:	Chianti Pty Ltd v Leume Pty Ltd [2007] WASCA 270; 35 WAR 488 Clark v Inglis [2010] NSWCA 144; 79 ATR 447 Commissioner of Inland Revenue v Ward [1970] NZLR 1 Re Baron Vestey's Settlement; Lloyds Bank Ltd v O'Meara [1951] Ch 209
Category:	Consequential orders (other than Costs)
Parties:	Robert William Fischer – First Appellant John Jules Fischer – Second Appellant Andrea Juliana Fischer Musser – Third Appellant Sylvia Beth Fischer Kramer – Fourth Appellant Nemeske Pty Limited – First Respondent Lorand Loblay – Second Respondent Karen Loblay – Third Respondent Laura Musser Sloat – Fourth Respondent Tobias Musser – Fifth Respondent Eve Fischer Gregg – Sixth Respondent Seth David Fischer – Seventh Respondent Todd Musser – Eighth Respondent Kathleen Elizabeth Fischer – Ninth Respondent William George Marcel Fischer – Tenth Respondent Corinne Ayers – Eleventh Respondent Aaron Kramer – Twelfth Respondent Marianne Fischer – Thirteenth Respondent
Representation:	Counsel: Mr N C Hutley SC/Mr R A Yezerski (Appellants) Dr C J Birch SC/Mr B DeBuse – (First, Second and Third Respondents) Solicitors: S Moran & Co (Appellants) Curwoods Lawyers (First, Second and Third Respondents)
File Number(s):	CA 2014/120230

JUDGMENT

1. THE COURT: The appellants have filed a notice of motion by which they seek an order re-opening the appeal which was determined by the order of dismissal made on 11 February 2015 for reasons given on that day: Fischer v Nemeske Pty Ltd [2015] NSWCA 6. The second and third respondents (“the executors”) oppose the making of the order the appellants seek.

2. The appellants contend that this Court:

1. decided the appeal on a basis that was not raised or argued by the parties;

2. (b)   resorted to a notion of resettlement that is erroneous; and

3. (c)   proceeded on the incorrect basis that there was no challenge to this Court’s decision in Clark v Inglis [2010] NSWCA 144; 79 ATR 447.

3. Contentions (a) and (b) may be dealt with together. They are founded on two propositions: first, that the Court did not accept either the appellants’ argument that there could be no exercise of the clause 4(b) power without a transfer of trust assets or the executors’ argument that the 23 September 1994 resolution of the trustee was effective to create a debt; and, second, that the Court’s decision was that the 23 September 1994 resolution effected a resettlement.

4. The executors say that, while the analysis and reasons of the Court did not precisely reflect the position taken by either the appellants or the executors, it did not involve such a departure from the territory mapped out by the respective…