Gibson v McIntosh

[2015] NSWSC 366

Supreme Court

New South Wales

Medium Neutral Citation:

Gibson v McIntosh [2015] NSWSC 366

Hearing dates:

26 March 2015

Date of orders:

26 March 2015

Decision date:

26 March 2015

Jurisdiction:

Equity Division

Before:

Young AJA

Decision:

1. 2010/00425027 Proceeding 25 - Motion lodged 17 June 2014. What is left of Motion 25 to be stood over to Young AJA’s list at 10am on 26 May 2015.
2. 2010/00425027 Proceeding 26 - Motion lodged 26 June 2014. Dr Gibson, and those with the same interest should have time, say, 14 days to consider whether to further amend the draft. Opposing parties to make their attitude known by 1 May 2015. Motion 26 to be listed before Young AJA at 10am on 26 May 2015 to consider what orders should be made on Motion 26.
3. 2010/00425027 Proceeding 32 – Motion lodged 25 September 2014 should be struck back in the list and adjourned to 26 May 2015 before Young AJA at 10am.
4. 2010/00425027 Proceeding 35 – Make orders on motion lodged 23 February 2015.
5. 2010/00425027 Proceeding 36 - Dismiss Motion lodged 4 March 2015.
6. 2010/00425027 Proceeding 37 - Dismiss Motion lodged 17 March 2015.
7. Costs of the six motions that I have reviewed today can wait until 26 May 2015.

Category:

Procedural and other rulings

Parties:

2010/00425027 – 001
(Plaintiff) Neville James Gibson
(Plaintiff 2) Bernard Joseph Drumm in his capacity as trustee of the Corporate Consulting Services Trust Claim
(Plaintiff 3) Xiao Yan Huang
(Defendant 1) Alexander David Kaheel McIntosh
(Defendant 2) Moyra Elizabeth Merrick

2010/00425027 –025
(Applicant 1) Alexander David Kaheel McIntosh
(Respondent 1) Neville James Gibson

2010/00425027 –026
(Applicant 1) Neville James Gibson
(Respondent 1) Alexander David Kaheel McIntosh
(Respondent 2) Moyra Elizabeth Merrick

2010/00425027 –032
(Applicant 1) Neville James Gibson
(Applicant 2) Bernard Joseph Drumm in his capacity as trustee of the Corporate Consulting Services Trust Claim
(Applicant 3) Xiao Yan Huang
(Respondent 1) Alexander David Kaheel McIntosh
(Respondent 2) Moyra Elizabeth Merrick

2010/00425027 –035
Applicant 1) Neville James Gibson
(Respondent 1) Alexander David Kaheel McIntosh

2010/00425027 –036
(Applicant 1) Alexander David Kaheel McIntosh
(Respondent 1) Neville James Gibson
(Respondent 2) Bernard Joseph Drumm
(Respondent 3) Xiao Yan Huang
(Respondent 4) Moyra Elizabeth Merrick
(Respondent 5) Biru Huang
(Respondent 6) Peter Lewis Whittaker

2010/00425027 –037
(Applicant 1) Neville James Gibson
(Respondent 1) Alexander David Kaheel McIntosh
(Respondent 2) Bernard Joseph Drumm
(Respondent 3) Moyra Elizabeth Merrick

Representation:

Counsel:
(Defendant 1) Mr J Darams
Solicitors:
(Plaintiff 1) Appearing in person, Dr Neville James Gibson
(Plaintiff 2) Mr Sumaru, of Landa and Rogers
(Plaintiff 3) Appearing in person, Ms Xiao Yan Huang

File Number(s):

2010/00425027 – 001, 025, 026, 032, 035, 036, 037

Judgment – EX TEMPORE

1. HIS HONOUR: These proceedings are quite complicated, though at the moment they only seem to involve about $38,000, which is a great tragedy, because the legal costs in actions in the Supreme Court are usually more than that, even for a one-day hearing.

2. The case has been going since 2010 and there have been 35 notices of motion filed. Now listed before me today, are four motions (proceedings 25, 35, 36 and 37). As we have gone through those, the existence of two motions (proceedings 26 and 32), which seem to have got lost in ancillary hearings, have also become apparent. I will refer to each of these motions by their proceeding number.

3. I have been able to make orders on motion 35 and dismiss 36, and 37 has become otiose. However, I will formally dismiss it, because costs are saved if we get out of the way motions which are not currently relevant.

4. The vital motion is motion 26, which is a motion that seems to have been filed on 26 June 2014 for leave to amend further the statement of claim.

5. It would seem to me that Dr Gibson, and those with the same interest, will need to consider whether further amendments should be made to the present further amended statement of claim in the light of possible settlement between Mr Drumm and Mr McIntosh, and other matters raised in the transcript this morning.

6. Accordingly, there should be time, say fourteen days, for them to consider whether further to amend the draft. That takes us to 10 April. There should be then time for the opposing parties to make their attitude known about the document, which brings us to 1 May. I will then list it before me at 10 o’clock on 26 May to consider what orders should be made on motion 26.

7. So far as motion 25 is concerned, there are two aspects. The first is as to whether parts of the existing statement of claim should be struck out. That now has become otiose. There is going to be a new document to replace the existing proceedings, but it may be a matter that should be kept alive in case no leave is given to amend. The second aspect is whether there should be security for costs granted in respect of the third plaintiff in that I have virtually been requested to stand it over. So that motion 25, or what is left of it, should also stand over to my list on 26 May 2015.

8. Motion 32 is to transfer the whole proceedings to the District Court. It would seem, probably by some mischance, that when that was returnable in October, there was no appearance. It should be struck back in the list and also adjourned to 26 May 2015, because it would seem to me that once the procedural problems are solved, and there is a statement of claim in defence which give rise to issues to trial, a case involving only $38,000 should go to the District Court, but I will make up my mind in relation to that matter on 26 May.

9. Mr Darams seeks costs of the six motions that I have reviewed today and that can wait until 26 May 2015.

10. Adjourned to Tuesday 26 May 2015 at 10.00 am.

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Decision last updated: 07 April 2015