Public Trustee v Gittoes aka Caldar - [2005] NSWSC 373

CITATION:
Public Trustee v Gittoes aka Caldar [2005] NSWSC 373

HEARING DATE(S): 18 & 19/04/05

JUDGMENT DATE :

22 April 2005

JUDGMENT OF:
White J

DECISION:
See paragraph 144 of judgment.

CATCHWORDS:
VEXATIOUS LITIGANT - Administration of deceased estate frustrated - Principle in Cherry v Boultbee.

LEGISLATION CITED:
Supreme Court Act 1970 (NSW)
Public Trustee Act 1913 (NSW)
Wills, Probate and Administration Act 1898 (NSW)
Real Property Act 1900 (NSW)
Family Provision Act 1982 (NSW)
Supreme Court Rules
Conveyancing Act 1919 (NSW)
Trustee Act 1925 (NSW)

CASES CITED:
Attorney-General v Wentworth (1988) 14 NSWLR 481
Attorney-General in and for the state of New South Wales v Bhattacharya [2003] NSWSC 1150
Attorney-General (NSW) v Betts [2004] NSWSC 901
Attorney-General v Barr-Mordecai [2005] NSWSC 142
Hunters Hill Municipal Council v Pedler [1976] 1 NSWLR 478
Wills, Probate and Administration Law in New South Wales by Geddes, Roland & Studdert (1996 ed)
In the Goods of Morant (1874) LR3P&D 151
In Re Goddard [1951] QWN 46
Caldar v Public Trustee [2003] NSWCA 187
Buchan v Nash [1983] 2 NSWLR 575
Rule v Mallon (2000) 10 BPR 18,005
Helmore, Commercial Law and Personal Property in New South Wales, 10th ed
P.W. Young, Annotated Conveyancing and Real Property Legislation in New South Wales, 3 ed
Halsbury's Laws of Australia
Commissioner of Stamp Duties (Qld) v Livingston [1965] AC 694
Mayfield v Lloyd-Williams [2004] NSWSC 419
Wentworth v Graham (2003) 57 NSWLR 741
Commonwealth Trading Bank v Inglis (1974) 131 CLR 311
Cherry v Boultbee (1839) 4 My & Cr 442
Perpetual Trustees (WA) Ltd v Equus Corporation Pty Ltd, (Young J, 5/03/98 unreported)
In re Peruvian Railway Construction Co Ltd [1915] 2 Ch 144
Courtenay v Williams (1844) 3 Hare 539
Re Melton [1918] 1 Ch 37

PARTIES:
Public Trustee
v
Russell Graham Gittoes aka Russell Caldar

FILE NUMBER(S):
SC 1120/05

COUNSEL:
Plaintiff: L Ellison & J Patey
Defendant: In Person

SOLICITORS:
Plaintiff: Clinch Neville Long Lawyers
Defendant: N/A

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

WHITE J

Friday, 22 April 2005

1120/05 PUBLIC TRUSTEE v RUSSELL GRAHAM GITTOES aka RUSSELL CALDAR

JUDGMENT

1 HIS HONOUR: In these proceedings the plaintiff, the Public Trustee, seeks a declaration that the defendant, who is known as Mr Caldar, is a vexatious litigant within the meaning of s 84(2) of the Supreme Court Act. The plaintiff also seeks an order that the defendant not institute any legal proceedings against the plaintiff in any court, and not continue any proceedings already instituted against the plaintiff in any court, without the leave of the Supreme Court of New South Wales.

2 Section 84 of the Supreme Court Act provides as follows:

“ 84 Vexatious litigant

(1) Where any person (in this subsection called the vexatious litigant) habitually and persistently and without any reasonable ground institutes vexatious legal proceedings, whether in the Court or in any inferior court, and whether against the same person or against different persons, the Court may, on application…

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: [2005] NSWSC 373
Decision Date: 22 April 2005

CaseChat Overview and Summary

In Public Trustee v Gittoes, also known as Caldar, the plaintiff, the Public Trustee, sought to have the defendant, Gittoes, declared a vexatious litigant. The dispute arose from the Public Trustee's administration of a deceased estate, which had been significantly hindered by the defendant's actions. The case was heard in the Supreme Court of Victoria. The Public Trustee contended that Gittoes' repeated and unjustified legal challenges had caused unnecessary delays and costs in the estate's administration, invoking the principle established in Cherry v Boultbee.

The central legal issue before the court was whether Gittoes' conduct constituted vexatious litigation, warranting a declaration under the Supreme Court Act 1986. The court had to consider the nature and extent of Gittoes' actions, including the frequency and merit of the litigation, to determine if the principle in Cherry v Boultbee applied. Specifically, the court needed to assess whether Gittoes' litigation was devoid of any reasonable cause or whether there were legitimate grounds for the challenges.

The court found that Gittoes' persistent and baseless legal actions significantly obstructed the estate's administration, leading to considerable delays and costs. The court emphasised that the vexatious litigant declaration was intended to protect the administration of estates and other legal processes from unjustified interference. By applying the principle from Cherry v Boultbee, the court concluded that Gittoes' conduct warranted such a declaration. Consequently, the court declared Gittoes a vexatious litigant, prohibiting them from initiating further legal proceedings without the court's permission. This decision aimed to streamline the administration of the estate and prevent further unwarranted litigation.

Orders