Gilbert v Kik - [2021] NSWSC 238

Supreme Court

New South Wales

Medium Neutral Citation: Gilbert v Kik [2021] NSWSC 238
Hearing dates: 5 March 2021
Date of orders: 19 March 2021
Decision date: 19 March 2021
Jurisdiction: Common Law
Before: Davies J
Decision:
(1) The defendants’ notice of motion filed 9 December 2020 is dismissed.
(2) The defendants are to pay the plaintiffs’ costs of the notice of motion.

Catchwords:
JUDGMENTS AND ORDERS – amending, varying and setting aside – for irregularity – UCPR 36.15 – where costs orders made against defendants – where judgment pursuant to costs assessment sought to be set aside on basis that the plaintiffs were not referred to in their capacity as executors – whether plaintiffs must be described in their representative capacity – UCPR 6.18 – where no irregularity in the entry of judgment – application dismissed

Legislation Cited:
Civil Procedure Act 2005 (NSW) s 61
Trustee Act 1925 (NSW) s 63
Uniform Civil Procedure Rules 2005 (NSW) rr 2.1, 6.18, 36.15

Cases Cited:
Levy v Kum Chah (1936) 56 CLR 159
Government Insurance Office v Johnson [1981] 2 NSWLR 617

Texts Cited:
Ritchie’s Uniform Civil Procedure NSW

Category: Procedural rulings
Parties: Marea Gilbert (First Plaintiff)
Lyn Ison (Second Plaintiff)
Janina Kik (First Defendant)
David James (Second Defendant)
Representation:
Counsel:
J Trebeck (Plaintiffs)
B May (Defendants)
Solicitors:
Adrian Holmes (Plaintiffs)
Allsop Glover Lawyers (Defendants)

File Number(s): 2020/218708
Publication restriction: Nil

Judgment

On 27 July 2020 the plaintiffs registered a judgment pursuant to a costs assessment in the sum of $73,929.93. The plaintiffs are Marea Gilbert and Lyn Ison. The defendants are Janina Kik and David James. Pursuant to that judgment, the plaintiffs sought by notice of motion a writ for the levy of property in respect of the unpaid judgment.
By a notice of motion filed 9 December 2020 the defendants sought orders that the judgment of 27 July 2020 be set aside pursuant to rule 36.15 of the Uniform Civil Procedure Rules 2005 (NSW) on the basis that it was entered irregularly, and that the writ on the property of the first defendant be stayed.
The sole reason for the application to set aside the judgment is said by the defendants to be the description of the plaintiffs in the judgment. To understand the point being made, it is necessary to set out the background history to the judgment.
The late Stanley Edward Douglas died on 2 December 2011. He left a substantial estate, largely in a testamentary trust called the Capital Protected Trust (CPT) for his wife Zeta Kathleen Douglas and their four daughters Marea Gilbert (the first plaintiff), Lyn Ison (the second plaintiff), Angela Weber and Trudie James. Stanley’s will appointed Zeta, Marea and a family friend, Janina Kik (the first defendant) as trustees of the CPT. David James (the second defendant) is Trudie James’ former husband. He was named in Stanley’s will as the appointer of the CPT.
On 6 June 2013 David James purported to remove Marea as a trustee and appoint his then wife…

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 Gilbert v Kik

Details

AGLC: Gilbert v Kik [2021] NSWSC 238
Case: [2021] NSWSC 238
Decision Date: 19 March 2021

CaseChat Overview and Summary

The case of Gilbert v Kik involved a dispute where the plaintiffs, as executors of a deceased estate, sought to set aside a judgment entered against the defendants due to an alleged irregularity in the judgment's description of the plaintiffs. The matter was heard in the Supreme Court of New South Wales. The plaintiffs argued that the judgment was irregular because it did not specify that they were acting in their capacity as executors, as required by the Uniform Civil Procedure Rules (UCPR) rule 6.18. The defendants opposed the application, contending that there was no irregularity and that the judgment was correctly entered.

The court was required to determine whether the omission of the plaintiffs' executor capacity in the judgment constituted an irregularity sufficient to warrant setting aside the judgment under UCPR rule 36.15. The court considered the nature of the irregularity and whether the omission impacted the fairness or correctness of the judgment. The court examined the requirements of UCPR rule 6.18 and assessed whether the failure to describe the plaintiffs in their representative capacity was a substantial defect that necessitated setting aside the judgment.

After considering the arguments and the relevant legal provisions, the court held that there was no irregularity in the entry of the judgment. The court found that the omission of the plaintiffs' executor capacity did not amount to a substantial defect that affected the fairness or correctness of the judgment. Consequently, the application to set aside the judgment was dismissed. The court ruled that the omission did not render the judgment irregular or unfair and that the judgment was correctly entered in accordance with the applicable legal standards.

Orders