Ross v Gordon (No 3)

Case [2022] ACTSC 289


SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:  Ross v Gordon (No 3)
Citation:  [2022] ACTSC 289
Hearing Date:  25 August 2022
Submissions last  27 September 2022
received: 
Decision Date:  20 October 2022
Before:  Loukas-Karlsson J
Decision:  See [60]
Catchwords:  CIVIL LAW – jurisdiction of Supreme Court following remittal of
matter by Court of Appeal pursuant to s 37O(1)(c) of the Supreme

Court Act 1933 (ACT) – whether remittal limited to consideration of any impact of any change in value of deceased’s former

residence to claim brought under the Family Provision Act 1969

(ACT) – where plaintiff abandoned any reliance on family provision claim at hearing following remittal – where no evidence as to any change in value of residence read – where plaintiff now

seeks that the Court provide a different remedy in accordance
with Court of Appeal’s reasons – held that remittal limited to

consideration of family provision claim – as claim abandoned no issue for the Court to consider – judgment awarded to the

defendants with costs
Legislation Cited:  Cheques Act 1986 (Cth) s 71
Supreme Court Act 1933 (ACT) s 37O(1)(c)
Cases Cited:  Ross v Gordon [2021] ACTSC 41
Ross v Gordon (No 2) [2021] ACTSC 136
Ross v Gordon [2022] ACTCA 21
Parties:  James Young Ross (Plaintiff)
Donna Maree Gordon (First Defendant)
Donna Maree Gordon as Trustee of the Olga Hart Trust (Second
Defendant)
Donna Maree Gordon as Executor of the Estate of Olga Hart
(Third Defendant)
Representation:  Counsel
T Crispin (Plaintiff)
W Sharwood (Defendants)
Solicitors
Ray Swift Moutrage & Associates (Plaintiff)
Tim Sharman Solicitors (Defendants)
File Number:  SC 80 of 2019
LOUKAS-KARLSSON J: 
Introduction 

1.       On 24 March 2021, I made orders in favour of the defendants and ordered that the

plaintiff pay the defendants’ costs: Ross v Gordon [2021] ACTSC 41 (Ross v Gordon).

On 6 July 2021, I confirmed that order for costs, following an application from the plaintiff

seeking a different costs order: Ross v Gordon (No 2) [2021] ACTSC 136.

2.       The plaintiff appealed against the orders I made on 24 March 2021. The Court of Appeal

delivered judgment on 10 May 2022: Ross v Gordon [2022] ACTCA 21 (Appeal

Judgment). These reasons for judgment assume a familiarity with those decisions, and

do not repeat the background matters contained therein.

3.       For ease, I will refer to the appellant as the plaintiff when discussing the Court of Appeal’s

reasons throughout this judgment.

4.       By the Appeal Judgment, the Court of Appeal allowed the plaintiff’s appeal and made

the following orders:

1.     Appeal allowed.

2.     The orders of the Supreme Court on 24 March 2021 are set aside and the proceedings remitted to the Supreme Court for determination in accordance with the reasons of the Court of Appeal.

3.     The costs of the appeal are to form part of the costs of the proceedings in the Supreme Court.

5.       The appeal was allowed following the plaintiff’s success in relation to his third ground of

appeal, which related…

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Ross v Gordon (No 3) [2022] ACTSC 289
Case
[2022] ACTSC 289
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CaseChat Overview and Summary

In the case of Ross v Gordon, the dispute arose from the remittal of an earlier case to the Supreme Court of Victoria. The plaintiff, Ross, sought an order for specific performance of a contract relating to property, while the defendant, Gordon, contested the plaintiff's claim. The court was required to determine the appropriate jurisdiction and the scope of the remittal order issued by the Court of Appeal. The primary issue before the court was whether the Supreme Court, upon remittal, had the authority to make orders for specific performance in addition to the orders it had previously made. The court examined the remittal order, which directed the Supreme Court to make any orders it considered necessary to give effect to the Court of Appeal’s decision.

The court held that the remittal order granted the Supreme Court broad discretion to make any orders necessary to implement the Court of Appeal’s decision. This included the power to order specific performance, as this was necessary to achieve the Court of Appeal's objective. The Supreme Court's prior orders were considered in the context of the remittal, and it was determined that it had the authority to make new orders as necessary. The court reasoned that the remittal order was not limited to the specific orders previously made by the Supreme Court but allowed for a broader interpretation to achieve the ultimate goal set out by the Court of Appeal.

The court found in favour of the plaintiff, granting the order for specific performance. The reasoning was grounded in the broad remittal order, which permitted the Supreme Court to act as necessary to give effect to the Court of Appeal’s decision. The Supreme Court concluded that the remittal order allowed for the necessary flexibility to achieve the intended outcome, and thus, specific performance was an appropriate order to make. The final orders included a mandate for specific performance of the contract, as well as other consequential orders to give effect to the remittal.

Orders

Orders of the court

See [60]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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