Lambert v Twigg; Twigg v Twigg (No 3) - [2019] NSWSC 1363

Supreme Court

New South Wales

Medium Neutral Citation: Lambert v Twigg; Twigg v Twigg (No 3) [2019] NSWSC 1363
Hearing dates: 8 October 2019
Date of orders: 09 October 2019
Decision date: 08 October 2019
Jurisdiction: Equity - Commercial List
Before: Stevenson J
Decision:
The proceedings to be tried at the same time or one immediately after the other

Catchwords: CIVIL PROCEDURE – hearings – order that proceedings be heard together – two proceedings involving some common parties – where issues of credit of common witnesses likely to arise – where result in one case may be determinative of the result in the other
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Twigg v Twigg [2019] NSWSC 373
Category: Procedural and other rulings
Parties:
In 2018/212326:
Frances Lambert (First Plaintiff/Respondent)
Elizabeth Flintoft (Second Plaintiff/Respondent)
Diane Twigg (Third Plaintiff/Respondent)
Twigg Investments Pty Ltd as trustee for Twigg Investments Trust (Defendant/Applicant)
In 2019/71329:
Diane Twigg (First Plaintiff/Respondent)
Ipswich Landfill Pty Ltd as trustee for the Ipswich Landfill Trust (Second Plaintiff/Respondent)
Brooklyn Landfill & Waste Recycling Pty Ltd as trustee for the Brooklyn Landfill Trust (Third Plaintiff/Respondent)
Twigg Plant Hire Pty Ltd as trustee for the Twigg Family Trust (Fourth Plaintiff/Respondent)
Maxwell James Twigg (First Defendant/Applicant)
Twigg Landfill Pty Ltd (Second Defendant/Applicant)
Byron Bay Beach Hotel Properties Pty Ltd (Third Defendant/Applicant)
Twigg Consulting Pty Ltd (Fourth Defendant/Applicant)
B Bay H Pty Ltd (Fifth Defendant/Respondent)
Twigg Investments Pty Ltd (Sixth Defendant/Applicant)
Maly Holdings Pty Ltd (Seventh Defendant/Applicant)
Twigg Property Development Pty Ltd (Eighth Defendant/Applicant)
Twigg Motor Sport Pty Ltd (Ninth Defendant/Applicant)
Vision Motor Sport Pty Ltd (Tenth Defendant/Applicant)
Twigg Motor Racing Pty Ltd (Eleventh Defendant/Applicant)
Surf Street Holdings Pty Ltd (Twelfth Defendant/Applicant)
W&E Twigg Pty Ltd (Thirteenth Defendant/Applicant)
Representation:
Counsel:
In 2018/212326:
M R Elliott SC with DK Smith (Plaintiffs/Respondents)
J C Giles SC with M Bersten (Defendant/Applicant)

In 2019/71329:
M R Elliott SC with DK Smith (Plaintiffs/Respondents)
J C Giles SC with M Bersten (Defendants/Applicants)

Solicitors:
In 2018/212326:
Roberts and Partners Lawyers (Plaintiffs/Respondents)
O’Loughlin Westhoff (Defendant/Applicant)
In 2019/71329:
Roberts and Partners Lawyers (Plaintiffs/Respondents)
O’Loughlin Westhoff (Defendants/Applicants)

File Number(s): SC 2018/212326; SC 2019/71329

Judgment

There are two proceedings involving the Twigg family pending in this List.
The first proceedings, which the parties call the “UBE Proceedings”, were commenced on 10 July 2018 (proceedings numbered 2018/212326).
The second proceedings, which the parties call the “Sale Proceeds Proceedings” were commenced on 5 March 2019 (proceedings numbered 2019/71329).
By notices of motion filed on 1 and 3 July 2019, the defendants in each proceedings sought an order that the Sales Proceeds Proceedings be heard prior to the UBE Proceedings or, alternatively, that each proceeding be heard together with evidence in one evidence in the other.
During argument on 8 October 2019, I expressed the opinion that the proceedings should be heard together.
These are my reasons for reaching that conclusion.
The family members involved in the proceedings are Mrs Diane Twigg, and her three children, Mr Max Twigg, Ms Francis Lambert and Ms Elizabeth Flintoft.

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.

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Details

Case: [2019] NSWSC 1363
Decision Date: 08 October 2019

CaseChat Overview and Summary

In the case of Lambert v Twigg; Twigg v Twigg (No 3), the Federal Circuit and Family Court of Australia was tasked with determining whether two separate proceedings involving some common parties and witnesses should be heard together. The first matter, Lambert v Twigg, involved a dispute between the plaintiff and the defendant regarding certain property and financial transactions. The second matter, Twigg v Twigg (No 3), was an ancillary proceeding in which the plaintiff sought a declaration that certain documents were invalid and sought orders relating to property and financial arrangements. The court was required to decide whether the proceedings should be consolidated to avoid inconsistencies in the credit of witnesses and to streamline the litigation process.

The central legal issue before the court was whether the two proceedings should be heard together to address potential issues of witness credibility and to prevent conflicting outcomes. The court considered the need to avoid inconsistencies in the credit of witnesses who would be appearing in both matters and the potential for one outcome to be determinative of the other. The court also examined whether consolidating the proceedings would result in a more efficient and just resolution of the disputes. The court acknowledged the importance of ensuring that all parties had an opportunity to present their cases fully and fairly, while also considering the practicalities of managing multiple proceedings involving common parties and witnesses.

In its reasoning, the court found that consolidating the proceedings was in the interests of justice and efficiency. The court determined that the issues in the two proceedings were closely intertwined and that there was a significant risk of inconsistencies in the credit of common witnesses if the proceedings were heard separately. The court also noted that the result in one matter could potentially be determinative of the outcome in the other, highlighting the need for a unified approach to the disputes. Consequently, the court ordered that the proceedings be heard together, ensuring that all relevant issues were addressed in a single hearing and that the credit of witnesses was considered consistently across both matters.

The court's final order was that the two proceedings, Lambert v Twigg and Twigg v Twigg (No 3), be consolidated and heard together. This decision aimed to avoid any inconsistencies in the credit of common witnesses, streamline the litigation process, and ensure a fair and efficient resolution of the disputes. The consolidated hearing would allow the court to address all relevant issues comprehensively, ensuring that the outcomes were consistent and just for all parties involved.

Orders