Fitter v Public Trustee - [2007] NSWSC 1487

CITATION: Fitter v Public Trustee & Ors [2007] NSWSC 1487

HEARING DATE(S): 13 December 2007

JUDGMENT DATE :
13 December 2007

JURISDICTION: Equity Division

JUDGMENT OF: Palmer J

EX TEMPORE JUDGMENT DATE: 13 December 2007

DECISION: Summons dismissed.

CATCHWORDS: PRACTICE AND PROCEDURE – SUBMITTING APPEARANCE – Party who files submitting appearance cannot later set aside judgment on ground that it was entered in party’s absence unless submitting appearance procured by fraud or other vitiating factor.

LEGISLATION CITED: - Forfeiture Act 1995 (NSW) – s 11
- Uniform Civil Procedure Rules 2005 (NSW) – 6.11, 28.2, 36.16(2)

CASES CITED: - BP Australia Limited v Brown [2003] NSWCA 216, (2003) 58 NSWLR 322
- Cameron v Cole (1944) 68 CLR 571
- Trust Company of Australia Limited v Perpetual Trustees (WA) Limited (No 2) (1995) 36 NSWLR 654

PARTIES: Kylie Hope Fitter (Plaintiff)
Public Trustee (First Defendant)
George Sidney Fitter (Second Defendant) (discontinued 13.12.07)
Grant Fitter (Third Defendant) (discontinued 13.12.07)
Gwendoline Ann Robb (Fourth Defendant)

FILE NUMBER(S): SC 3589/07

COUNSEL: Ms A.J. Tibbey (Plaintiff)
L.J. Ellison SC (First Defendant)
M.W. Young (Fourth Defendant)

SOLICITORS: Peter Baker (Plaintiff)
Roberts Mann (First Defendant)

3589/07 Fitter v Public Trustee and Ors

JUDGMENT – Ex tempore
13 December, 2007

1 The Plaintiff, Ms Fitter, applies for an order setting aside final orders of the Court made on 24 November 2005 which applied the forfeiture rule under s 11 of the Forfeiture Act 1995 (NSW) to her entitlement to claim any benefit in her mother's estate. The application is made under Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) 36.16(2)(b) on the ground that the orders were made in Ms Fitter's absence.

2 On 22 August 2002 Ms Fitter was found not guilty of the murder of her mother by reason of mental illness. The principal participants in the deceased's death were Ms Fitter's father and her brother. They too were found not guilty by reason of mental illness. Ms Fitter was ordered to be detained in a juvenile justice centre until released by due process of law.

3 On 4 August 2003 the Public Trustee obtained letters of administration cta in respect of the deceased's estate. On 30 June 2004 the Public Trustee filed a Summons in proceeding 3717 of 2004, the defendants in those proceedings being Ms Fitter, her father, her brother and Ms Robb, who is the deceased's sister and her beneficiary on intestacy. The Public Trustee's Summons sought a declaration that the involvement of Ms Fitter, her father and her brother in the death of the deceased invoked the forfeiture rule under the Forfeiture Act and it sought directions for the distribution of the intestate estate of the deceased.

4 On 14 June 2005 a solicitor, Mr Baker, filed a Notice of Appearance in the proceedings on behalf of Ms Fitter. On 15 June 2005 Mr Baker attended a call over at which the proceedings were set down for trial on 9 November 2005. On 18 October 2005 Mr Baker served…

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 Fitter v Public Trustee

Details

AGLC: Fitter v Public Trustee [2007] NSWSC 1487
Case: [2007] NSWSC 1487
Decision Date: 13 December 2007

CaseChat Overview and Summary

The case of Fitter v Public Trustee involved a dispute between the plaintiff, Fitter, and the defendant, the Public Trustee. The primary issue at hand was whether the plaintiff could set aside a judgment that had been entered against them, on the basis that they were not present when the judgment was made. The plaintiff had filed a submitting appearance, which is a document by which a party indicates their intention to submit to the jurisdiction of the court, but was not present when the judgment was made. The court was required to determine whether the plaintiff could set aside the judgment on this basis, or whether the submitting appearance precluded this action.

The court found that the submitting appearance was a binding agreement between the parties, which indicated the plaintiff's intention to submit to the jurisdiction of the court. The court held that the plaintiff could not set aside the judgment on the basis of their absence, unless there was evidence of fraud or other vitiating factor that had led to the submitting appearance being procured. The court found no such evidence in this case, and therefore upheld the judgment against the plaintiff.

In reaching its decision, the court relied on a number of precedent cases which had established the principle that a party who files a submitting appearance cannot later set aside a judgment on the basis of their absence. The court also considered the purpose of the submitting appearance, which is to indicate a party's intention to submit to the jurisdiction of the court, and to ensure that the court has the necessary authority to make a binding decision. The court held that the submitting appearance in this case had achieved this purpose, and therefore the plaintiff was bound by the judgment that had been entered against them.

The final orders of the court were that the plaintiff's application to set aside the judgment was dismissed, and that the judgment against the plaintiff stood. The court also awarded costs against the plaintiff, in favour of the defendant.

Orders