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Jowett v Kelly

Jowett v Kelly

Case [2008] NSWSC 1009 27 August 2008

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CITATION: Jowett v Kelly [2008] NSWSC 1009

HEARING DATE(S): 27 August 2008

JURISDICTION: Equity Division
Duty List

JUDGMENT OF: Brereton J

EX TEMPORE JUDGMENT DATE: 27 August 2008

DECISION: Stay granted pending appeal.

CATCHWORDS: APPEALS – STAY OF PROCEEDGINS – application by defendants to stay orders of Associate Judge made pursuant to (NSW) Family Provision Act 1982 pending appeal – where Associate Judge took adverse view of defendants’ conduct of case – whether appeal has prospect of success – where Associate Judge’s decision correct on evidence before him – where evidence now suggests defendants were incompetently represented and misled as to status and progress of proceedings – whether incompetence of legal representative an available ground of appeal – balance of convenience and prejudice – where declining stay could bankrupt defendant and deny viable appeal.

LEGISLATION CITED: (CTH) Family Law Act 1975, ss 79, 79A
(NSW) Family Provision Act 1982

CATEGORY: Procedural and other rulings

CASES CITED: Burgoine v Taylor (1878) 9 Ch D 1
Chouman v Margules (1993) 17 MVR 144
Clifton & Stuart (1991) FLC 92-194
Ernst v Mowbray [2004] NSWSC 1140
Gorman v Gorman; Estate late Jeanette Mary Gorman [2003] NSWSC 647
Liprini v Liprini [2008] NSWSC 423
R v Birks (1990) 19 NSWLR 677
Taylor v Taylor (1978) 143 CLR 1
Wentworth v Wentworth (NSWSC, 4 September 1991, unreported, Young J)
Wiblen v Ferros (1998) 44 NSWLR 518

PARTIES: Kenneth Rowland Jowett (plaintiff)
Leanne Emeline Kelly (first defendant)
Terrence John McLennan (second defendant)

FILE NUMBER(S): SC 4376/07

COUNSEL: Mr M K Meek w Ms Christofis (plaintiff)
Mr T J Morahan (defendants)

SOLICITORS: Russell McLelland Brown (plaintiff)
Bryden's Law Office (defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
DUTY LIST

BRERETON J

Wednesday, 27 August 2008

4376/07 Kenneth Rowland Jowett v Leanne Emeline Kelly & Ors

JUDGMENT (ex tempore)

1 HIS HONOUR: On 29 May 2008, McLaughlin AsJ gave judgment in these proceedings, making orders – under (NSW) Family Provision Act 1982 – that the plaintiff Kenneth Rowland Jowett receive from the estate of the deceased a legacy in the sum of $100,000, and that each of the defendants, who are the executors and beneficiaries, restore to the estate a sum of $81,470. An order was also made that the defendants personally pay the costs of Mr Jowett on an indemnity basis and not be entitled to recoup them from the estate; and that a solicitor, who had until then acted for the defendants, pay certain of Mr Jowett's costs, also on an indemnity basis. Liberty was reserved to apply for a designating order in respect of notional estate, it appearing that the estate had been wholly distributed to the executors beneficially. By Notice of Motion filed on 13 August 2008, the defendants claim an order staying the operation of those orders until further order, in aid of an appeal which the defendants have since filed in the Court of Appeal, a holding appeal having been filed within time.

2 In his Honour's judgment,…

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 Jowett v Kelly

Details

AGLC: Jowett v Kelly [2008] NSWSC 1009
Case: [2008] NSWSC 1009
Decision Date: 27 August 2008

CaseChat Overview and Summary

The appeal in Jowett v Kelly involved the defendants, who sought to stay the orders of an Associate Judge made under the Family Provision Act 1982 pending their appeal. The Associate Judge had taken an adverse view of the defendants' conduct of the case, leading to an outcome that the defendants contested. The court was tasked with determining whether the appeal had a prospect of success and if the Associate Judge's decision was correct based on the evidence presented. Additionally, the court examined whether the defendants' alleged incompetence of their legal representation and being misled about the status and progress of the proceedings could serve as a valid ground for appeal.

The legal issues before the court included whether the appeal had a reasonable chance of success, whether the incompetence of the defendants' legal representation constituted a valid ground for appeal, and whether declining the stay would result in significant prejudice to the defendants. The court had to balance the potential success of the appeal against the consequences of denying the stay, including the possibility of bankruptcy and the denial of a viable appeal.

The court concluded that the appeal had a reasonable chance of success, particularly in light of evidence suggesting that the defendants had been incompetently represented and misled about the proceedings. The court found that the incompetence of legal representation was an appropriate ground for appeal. Furthermore, the court determined that declining the stay could result in significant prejudice, including the potential bankruptcy of one of the defendants and the denial of a viable appeal. Consequently, the court granted the stay, allowing the appeal to proceed.

The final orders of the court included granting the defendants' application for a stay of the Associate Judge's orders pending the appeal. This decision permitted the appeal to progress, providing the defendants an opportunity to challenge the Associate Judge's orders and potentially rectify the issues arising from their representation and the proceedings.

Orders