McGettigan v Coulter

[2022] NSWCA 27

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

McGettigan v Coulter [2022] NSWCA 27

Hearing dates:

21 February 2022

Date of orders:

28 February 2022

Decision date:

28 February 2022

Before:

Macfarlan JA

Decision:

(1) Accept the undertakings to the Court by the respondents, first, that they will retain in their personal bank accounts until the disposition of the applicant’s appeal proceedings, the total amount of funds they have received in respect of the moneys earlier paid into Court and, secondly, that those funds will therefore not be disbursed or expended in that period.

(2) Dismiss the applicant’s motion for a stay of orders made in the Equity Division.

(3) Order the applicant to pay the respondent’s costs of the notice of motion.

Catchwords:

APPEAL – stay application refused – no issue of principle

Category:

Principal judgment

Parties:

John Patrick McGettigan (Applicant)
Glenn Patrick Coulter (First Respondent)
Rhonda Anne Coulter (Second Respondent)

Representation:

Counsel:
J McGettigan (self-represented) (Applicant)
M Field (sol) (First and Second Respondents)

Solicitors:
Field Lawyers (First and Second Respondents)

File Number(s):

2021/00256597

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity

Citation:

[2021] NSWSC 1097;

[2021] NSWSC 1356

Date of Decision:

31 August 2021;
22 October 2021

Before:

Slattery J

File Number(s):

2018/00174649;
2020/00104101

Judgment

1. MACFARLAN JA: This is an application by Mr John McGettigan, a self-represented litigant, for a stay pending appeal of orders made by Slattery J in the Equity Division on 22 October 2021.

2. Slattery J delivered judgments on 31 August and 22 October 2021 in proceedings concerning the estate of the late Brian McGettigan (“the deceased”) ([2021] NSWSC 1097; [2021] NSWSC 1356). His Honour dismissed an application by Mr John McGettigan, the brother of the deceased, for probate of a purported will, alleged to have been made in 2016, which his Honour found to be a forgery. Instead, on the application of Mr Glenn Coulter and Ms Rhonda Coulter (“the Coulters”) who are the nephew and niece of Beverley McGettigan, the wife of the deceased, his Honour granted probate of a will of the deceased dated 19 January 2000.

3. On 22 October 2021 his Honour made orders concerning the payment out of Court to the Coulters of funds representing assets of the deceased’s estate. Under the orders, if Mr McGettigan filed a notice of appeal in the Court of Appeal on or before 1 December 2021, the funds were to be paid into the Coulters’ lawyers’ trust account to enable the discharge of estate liabilities but not otherwise to be disbursed until the completion of the appeal. If, however, Mr McGettigan did not file such a notice before the stipulated date, the Coulters were not to be subject to that restriction on disbursement and would therefore be permitted to pay out the funds unconditionally. There is an issue between the parties as to when Mr McGettigan filed his notice of appeal but it is not necessary to address that issue in this judgment.

4. On the stay application to this Court, the Coulters’ solicitor, Mr Mark Field, indicated to the Court that the funds paid out of Court pursuant to Slattery J’s orders, other than funds used to pay legal costs and disbursements, are held by the Coulters in their personal bank accounts. Through Mr Field, the Coulters proffered undertakings to the Court, first, that they will retain in their personal bank accounts until the disposition of Mr McGettigan’s appeal proceedings, the total amount of funds they have received from Mr Field’s firm in respect of the moneys earlier paid into Court and, secondly, that those funds will therefore not be disbursed or expended in that period.

5. Turning to matters relevant to my discretion to order a stay, I indicate that Mr McGettigan has not persuaded me to a positive view that he has reasonable prospects of success on appeal, although it is difficult to form a firm view one way or the other in the absence of a full examination of the evidence that was before the primary judge. This has, of course, not been possible.

6. I do, however, note that Mr McGettigan placed particular emphasis in this regard on new evidence he sought to adduce on appeal, which he claimed establishes the forgery of a document, namely an invoice dated 7 January 2000 (“the invoice”) that was before the primary judge and was relevant to the validity of the 19 January 2000 will. Specifically, he relied on an affidavit sworn by a Mr Timothy O’Brien on 21 June 2021, in which Mr O'Brien states that his purported signature on the invoice is not his. Mr O’Brien indicates, however, that the invoice appears to have emanated from a business of which he was an employee at the time, and that it is possible that, (by implication) in the ordinary course of its business, the firm used his signature as a pre-signed template for convenience. Further, Mr O’Brien indicates that the invoice appears to be a genuine invoice issued by the business, notwithstanding that the signature on it is not his.

7. It is, in any event, difficult to envisage this affidavit being allowed to be read for the first time on appeal when it bears a date (21 June 2021) very soon after the date on which the principal hearing at first instance concluded (16 June 2021), that also being a date some two and a half months before his Honour delivered his principal judgment, on 31 August 2021. Furthermore, it predates the hearing which led to his Honour’s second judgment, yet no application appears ever to have been made by Mr McGettigan to the primary judge for leave to reopen his case to read the affidavit, or otherwise to adduce evidence from Mr O’Brien.

8. As to other discretionary matters concerning the stay sought by Mr McGettigan, he has not identified any basis for concluding that he would be prejudiced by not having the stay that he seeks and, in particular, that he would or might be prejudiced even if the undertakings described in [4] were accepted.

9. In these circumstances, the orders sought by Mr McGettigan should not be made. Instead, I make the following orders:

1. Accept the undertakings to the Court by the Coulters, given through their solicitor Mr Mark Field, first, that they will retain in their personal bank accounts until the disposition of Mr McGettigan’s appeal proceedings, the total amount of funds they have received from Mr Field’s firm in respect of the moneys earlier paid into Court and, secondly, that those funds will therefore not be disbursed or expended in that period.

2. Dismiss Mr McGettigan’s motion for a stay of orders made in the Equity Division.

3. Order Mr McGettigan to pay the Coulters’ costs of the notice of motion.

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Decision last updated: 28 February 2022