Rinehart v Rinehart - [2019] NSWCA 54

Court of Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Rinehart v Rinehart [2019] NSWCA 54
Hearing dates: 20 March 2019
Date of orders: 27 March 2019
Decision date: 27 March 2019
Before: Basten JA; Simpson AJA
Decision:
(1)   Dismiss the applicant’s summons seeking leave to appeal from the orders made in the Equity Division on 5 November 2018.

(2)   Direct that the cross-applicants’ cross-summons seeking leave to cross-appeal be treated as an application for leave to appeal and dispense with the filing and service of any further notices.

(3)   Dismiss the application by the cross-applicants for leave to appeal.

(4)   Order that the applicant pay the first and second respondents’ costs of her application for leave to appeal.
(5)   Order that the cross-applicants pay the first and second cross-respondents’ costs of their application for leave to appeal.
Catchwords:
CIVIL PROCEDURE – leave to appeal – interlocutory orders – orders working out orders in principal judgment – whether parties should be left to exercise of liberty to apply – form of orders dependent on circumstances of case – effect of orders explained in reasons
TRUSTS – trust documents – right of incoming trustee to delivery up of trust documents by outgoing trustee – documents held by third parties – nature of property in documents
Legislation Cited: Supreme Court Act 1970 (NSW), s 101
Uniform Civil Procedure Rules 2005 (NSW), rr 51.11, 51.17
Cases Cited: Breen v Williams (1996) 186 CLR 71; [1996] HCA 57
Derrawee Pastoral Company Pty Ltd v McConochie [1995] NSWCA 123
Hancock v Rinehart (Freehills subpoena) [2017] NSWSC 530
Hancock v Rinehart [2015] NSWSC 646; (2015) 13 ASTLR 1
Hartigan Nominees Pty Ltd v Rydge (1992) 29 NSWLR 405
In the matter of the Bird Charitable Trust (2012) (1) JLR 62
John Alexander’s Clubs Pty Ltd v White City Tennis Club Ltd; Walker Corporation Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1; [2010] HCA 19
Kara Kar Holdings Pty Ltd v Brookton Holdings [1997] NSWCA 171
Re Londonderry’s Settlement [1965] Ch 918
Tiger v Barclays Bank Ltd [1952] 1 All ER 85
Tomko v Palasty [No 2] (2007) 71 NSWLR 61; [2007] NSWCA 369
Trad v Harbour Radio Pty Ltd [2017] NSWCA 64
Yanner v Eaton (1999) 201 CLR 351; [1999] HCA 53
Texts Cited: D Ong, Trusts Law in Australia (5th ed, 2018, The Federation Press)
J D Heydon and M J Leeming, Jacobs Law of Trusts in Australia (8th ed, 2016, LexisNexis)
K Gray, “Property in Thin Air” (1991) 50 Camb LJ 252
Lewin on Trusts (18th ed, 2012, Sweet & Maxwell) and
(19th ed, 2015)
Waters’ Law of Trusts in Canada (4th ed, 2012, Carswell)
Category: Procedural and other rulings
Parties: Gina Hope Rinehart (Applicant and Third Cross-Respondent)
Bianca Hope Rinehart (First Respondent in both matters)
John Langley Hancock (Second Respondent in both matters)
Hancock Prospecting Pty Ltd (Third Respondent and First Cross-Applicant)
Hope Downs Iron Ore Pty Ltd (Fourth Respondent and…

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] NSWCA 54
Decision Date: 27 March 2019

CaseChat Overview and Summary

The proceedings involved an application for leave to appeal by Gina Rinehart (the applicant) against interlocutory orders made in the Equity Division of the Supreme Court of New South Wales. The dispute concerned the delivery up of trust documents by an outgoing trustee to an incoming trustee, with the documents held by third parties. The court was constituted by Basten JA and Simpson AJA.

The primary legal issues before the court were whether leave to appeal should be granted from interlocutory orders that were working out the terms of a principal judgment, and whether the parties should be left to exercise their liberty to apply to the court below for further directions. Additionally, the court considered the nature of the property in trust documents and the right of an incoming trustee to their delivery up by an outgoing trustee, particularly when those documents are held by third parties.

The court reasoned that interlocutory orders, especially those that merely give effect to a principal judgment, should generally not be the subject of an appeal unless there are compelling reasons to do so. The court noted that the form of such orders often depends on the specific circumstances of the case and that the parties typically have recourse to the court below through a liberty to apply clause to resolve any ambiguities or unforeseen issues. The court found no sufficient grounds to grant leave to appeal in this instance.

The applicant's summons seeking leave to appeal was dismissed. The cross-summons seeking leave to cross-appeal was treated as an application for leave to appeal and was also dismissed. Costs were ordered in favour of the first and second respondents regarding the applicant's application, and in favour of the first and second cross-respondents regarding the cross-applicants' application.

Orders

Orders of the court

(1) Dismiss the applicant’s summons seeking leave to appeal from the orders made in the Equity Division on 5 November 2018.

(2) Direct that the cross-applicants’ cross-summons seeking leave to cross-appeal be treated as an application for leave to appeal and dispense with the filing and service of any further notices.

(3) Dismiss the application by the cross-applicants for leave to appeal.

(4) Order that the applicant pay the first and second respondents’ costs of her application for leave to appeal.

(5) Order that the cross-applicants pay the first and second cross-respondents’ costs of their application for leave to appeal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Rinehart v Rinehart [2019] NSWCA 54
Hearing dates:	20 March 2019
Date of orders:	27 March 2019
Decision date:	27 March 2019
Before:	Basten JA; Simpson AJA
Decision:	(1) Dismiss the applicant’s summons seeking leave to appeal from the orders made in the Equity Division on 5 November 2018. (2) Direct that the cross-applicants’ cross-summons seeking leave to cross-appeal be treated as an application for leave to appeal and dispense with the filing and service of any further notices. (3) Dismiss the application by the cross-applicants for leave to appeal. (4) Order that the applicant pay the first and second respondents’ costs of her application for leave to appeal. (5) Order that the cross-applicants pay the first and second cross-respondents’ costs of their application for leave to appeal.
Catchwords:	CIVIL PROCEDURE – leave to appeal – interlocutory orders – orders working out orders in principal judgment – whether parties should be left to exercise of liberty to apply – form of orders dependent on circumstances of case – effect of orders explained in reasons TRUSTS – trust documents – right of incoming trustee to delivery up of trust documents by outgoing trustee – documents held by third parties – nature of property in documents
Legislation Cited:	Supreme Court Act 1970 (NSW), s 101 Uniform Civil Procedure Rules 2005 (NSW), rr 51.11, 51.17
Cases Cited:	Breen v Williams (1996) 186 CLR 71; [1996] HCA 57 Derrawee Pastoral Company Pty Ltd v McConochie [1995] NSWCA 123 Hancock v Rinehart (Freehills subpoena) [2017] NSWSC 530 Hancock v Rinehart [2015] NSWSC 646; (2015) 13 ASTLR 1 Hartigan Nominees Pty Ltd v Rydge (1992) 29 NSWLR 405 In the matter of the Bird Charitable Trust (2012) (1) JLR 62 John Alexander’s Clubs Pty Ltd v White City Tennis Club Ltd; Walker Corporation Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1; [2010] HCA 19 Kara Kar Holdings Pty Ltd v Brookton Holdings [1997] NSWCA 171 Re Londonderry’s Settlement [1965] Ch 918 Tiger v Barclays Bank Ltd [1952] 1 All ER 85 Tomko v Palasty [No 2] (2007) 71 NSWLR 61; [2007] NSWCA 369 Trad v Harbour Radio Pty Ltd [2017] NSWCA 64 Yanner v Eaton (1999) 201 CLR 351; [1999] HCA 53
Texts Cited:	D Ong, Trusts Law in Australia (5th ed, 2018, The Federation Press) J D Heydon and M J Leeming, Jacobs Law of Trusts in Australia (8th ed, 2016, LexisNexis) K Gray, “Property in Thin Air” (1991) 50 Camb LJ 252 Lewin on Trusts (18th ed, 2012, Sweet & Maxwell) and (19th ed, 2015) Waters’ Law of Trusts in Canada (4th ed, 2012, Carswell)
Category:	Procedural and other rulings
Parties:	Gina Hope Rinehart (Applicant and Third Cross-Respondent) Bianca Hope Rinehart (First Respondent in both matters) John Langley Hancock (Second Respondent in both matters) Hancock Prospecting Pty Ltd (Third Respondent and First Cross-Applicant) Hope Downs Iron Ore Pty Ltd (Fourth Respondent and…