Glenella One Pty Limited v Duncan (No 2)

Supreme Court

New South Wales

Medium Neutral Citation:	Glenella One Pty Limited v Duncan (No 2) [2015] NSWSC 441
Hearing dates:	15 April 2015
Date of orders:	17 April 2015
Decision date:	17 April 2015
Jurisdiction:	Common Law
Before:	Schmidt J
Decision:	Application to lift stay refused. Orders made on 6 March 2015 varied.
Catchwords:	PROCEDURE – notice of motion – application for an order to lift stay – the application refused – orders earlier imposed varied
Legislation Cited:	Civil Procedure Act 2005 (NSW) Family Law Act 1975 (Cth) Real Property Act 1900 (NSW)
Cases Cited:	Glenella One Pty Limited v Duncan [2015] NSWSC 165
Category:	Procedural and other rulings
Parties:	Glenella One Pty Ltd ACN 158 632 976 (Plaintiff/Second Cross-Defendant) Andrew David Duncan (First Defendant/First Cross-Claimant) White Turtle Pty Ltd ACN 108 030 137 (Second Defendant/First Cross-Defendant) Morten Weaver (Third Defendant/Fourth Cross-Defendant) Jane Duncan (Fourth Cross-Defendant)
Representation:	Counsel: Mr C Birch SC (Plaintiff/Second Cross-Defendant) Mr G W McGrath (First Defendant/First Cross-Claimant)
File Number(s):	2014/00163175
Publication restriction:	None

Judgment

1. On 6 March 2015, I refused an application brought by the defendant, Mr Andrew Duncan, for an order transferring these proceedings to the Family Court. An order staying the proceedings until further order, pending the Family Court’s determination of an application which the plaintiff, Glenella, had brought in that Court, to be removed as a party to those proceedings was, however, then made (see Glenella One Pty Limited v Duncan [2015] NSWSC 165).

2. These proceedings concern a claim for possession brought by Glenella, the registered proprietor of a leasehold interest in a property at Manly, where Mr Duncan, a paraplegic, has long lived and in which he claims an equitable interest. Mr Duncan resists Glenella’s claim and, by a cross-claim, seeks an order that its interest in the property be transferred to him, given the circumstances in which it became the proprietor of the property, he claims, as the result of fraud.

3. Mr Duncan’s sister, Ms Jane Duncan, and her former de facto husband, Mr Morton Weaver and their family company, White Turtle Pty Ltd, the former registered proprietor of the lease, are all parties to these proceedings. Mr Weaver, who is now a bankrupt, has not been active in the proceedings, nor has his Trustee taken an interest. Nor have White Turtle, now in liquidation as the result of steps taken by Mr Weaver, or Ms Duncan or her estate been active.

4. The Family Court proceedings concern claims made by Ms Duncan against Mr Weaver in relation to, amongst other things, her interest in White Turtle and through it, the Manly property, which it transferred to Glenella, Ms Duncan claimed, as the result of fraudulent steps taken by Mr Weaver, when he dealt with Glenella’s corporate adviser, Mr Ted Manny and which resulted in Glenella acquiring the property in return for certain non-voting shares. Both Mr Duncan and Glenella are also parties to those proceedings.

5. The details of all of these matters and how the parties advance their…