Ross v Gordon (No 3)
[2022] ACTSC 289
•25 August 2022
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 to conclusions I had reached in relation to the operation of the
Cheques Act 1986 (Cth) (Cheques Act). As explained in the Appeal Judgment at [73],
the Court found that:
73. Because of the absence of consideration, there was no enforceable liability arising from the holding of the cheques and no liability arising under s 71 of the Cheques Act from the dishonour of the cheques. The Estate was therefore to be administered on the basis that there was no liability to the Trust.
6. The reasons for the making of orders 2 and 3 were outlined at [74]-[75] of the Appeal
Judgment, where the Court stated:
74. As pointed out at [27] above, if the appeal was allowed, amongst the orders sought was an order remitting the matter to the trial judge for further consideration of the family provision claim because of the potential for the principal asset of the Estate, the
deceased’s former residence, to have increased in value. The respondents contended
that there was no evidence of such an increase in value and as a consequence no remittal should be made. Given the passage of time since the matter was heard by the primary judge, whether or not further evidence of value is permitted and what consequences flow from the admission of any further evidence are matters best resolved by the primary judge before whom all of the evidence was led and who saw and heard the witnesses.
75. Although the appeal has been successful, given that it was brought in the face of a conclusion by the primary judge that the appellant had not established that adequate provision for his proper maintenance, education or advancement was not made in the
deceased’s will, it is appropriate that the costs of the appeal form part of the costs of
the proceedings in the Supreme Court.
7. As I will come to later, much turns on the correct interpretation of those paragraphs of
the Court of Appeal’s reasons.
8. In accordance with the orders of the Court of Appeal, the matter was listed before me on
12 May 2022 to discuss timetabling matters. On that date the parties indicated that short
affidavit evidence would likely be filed and that the matter could be listed for hearing with
a half day estimate.
9. Subsequently, the matter was listed before me for hearing on 25 August 2022 with an
estimate of half a day.
10. At the commencement of that hearing, counsel for the plaintiff indicated that the family
provision claim was not pressed. In a written outline of submissions that counsel had
prepared, counsel expressed that submission as follows:
The findings of fact made by this Court with respect to the Family Provision claim
were not challenged on appeal. The only component of this claim open to further consideration is the financial resources of the estate. The new financial position of the estate is attested to in the affidavit of Donna Gordon dated 21 June 2022.
In light of the findings of this Court, the Plaintiff does not seek to be further heard regarding the Family Provision claim.
(emphasis added)
11. Rather than seeking to advance any argument on the family provision claim, the plaintiff
submitted that this Court should make various orders to “give effect” to the Appeal
Judgment. I will discuss the orders that are sought in more detail below.
12. In the outline of written submissions, counsel for the plaintiff submitted that:
The decision of the Court of Appeal leaves the choice of remedy to be imposed to this Court. The Plaintiff submits that either declaratory relief or the imposition of a constructive trust would be appropriate.
13. The primary remedy now sought by the plaintiff is an “an appropriately crafted declaration
[which] would deprive the Estate of the capacity to deal with the Cheques as giving rise
to an enforceable liability in favour of the Trust”. Alternatively, counsel sought a
constructive trust, the effect of which would be to:
… deprive the Olga Hart Trust of the beneficial ownership of the chose in action said to have
been created by the Cheques and restore that beneficial ownership to the estate. The estate
would then be at liberty to distribute the gifts and bequests under the will and satisfy
any award for further provision.
(emphasis added)
14. I note that this submission appears to differ from the order sought for the constructive
trust (in the alternative to the declaration). In particular, the order for the constructive
trust sought is an order that the “assets of the estate … are subject to a constructive trust
in favour of the plaintiff, to the sum of $200,000, plus interests and costs”. That order
would not appear to restore the beneficial ownership to the estate or provide the estate
with liberty to distribute the gifts and bequests under the will, but rather require a
particular payment to be made to the plaintiff.
15. The plaintiff also seeks other orders in relation to interest and costs. I will turn to the
matter of costs later in these reasons.
16. While counsel for the defendants indicated that he was able to advance some
submissions orally, counsel noted that the defendants had (quite expectedly) not been
anticipating the plaintiff’s submissions. Rather, the defendants had come prepared with
affidavit evidence and submissions relating to the change in value of the deceased’s
former residence and what impact (if any) this would have on my original finding
regarding the family provision claim.
17. Ultimately, that affidavit material was not read in light of the plaintiff’s abandonment of
the family provision claim. In the result, the Court has not received any evidence
regarding the change in value of the deceased’s former residence.
18. Broadly, at the hearing the defendants submitted that the Court did not have jurisdiction
to entertain the plaintiff’s application for relief given the plaintiff no longer pressed the
family provision claim. The defendants further submitted that the relief sought should not,
in any event, be granted.
19. In addition to advancing these submissions, the defendants outlined the legal status of
the estate and explained the effect of the Court of Appeal’s conclusion that the cheque
did not result in a liability to the trust.
20. In particular, counsel for the defendants submitted that in accordance with the usual
rules, as specific bequests are paid out before general bequests, the monies from the
sale of the deceased’s former home would be paid to specific beneficiaries. In the result,
counsel submitted that the expectation was that after any costs from the litigation were
deducted from the estate it was unlikely that assets would be available to fully satisfy the
bequest to the plaintiff. The plaintiff, in response, submitted that this was a new argument
that should have been made in the original hearing before me and that the defendants
now need leave to now make such a submission. For reasons I will come to later,
resolution of these issues is not necessary to dispose of the remitted proceeding.
21. Given the new submission advanced at the hearing, I made orders on 25 August 2022
granting the parties leave to provide my chambers with written submissions in-chief and
in reply and otherwise reserving my decision. In my view, that approach was preferable
to adjourning the matter part-heard to a later date.
22. In an email to the parties sent by my chambers, I indicated that the written submissions
should address (amongst other relevant matters) the following:
a) The jurisdiction of the Court following the remittal; b) The scope of the remittal; and c) What costs orders should be made. 23. There are, in effect, two questions before the Court:
a) Whether, given the plaintiff’s abandonment of the family provision claim this Court has jurisdiction to grant the relief the plaintiff now seeks; and
b) Whether that relief should be granted.
The second issue only arises if the answer to the first question is “yes”.
Does the Court have jurisdiction?
25. This issue turns on the interpretation of the Court of Appeal’s order remitting the matter
for further hearing. As the defendants correctly submitted the rights of the parties were
determined by me on 24 March 2021 subject to the plaintiff’s right to an appeal. The
plaintiff exercised that right, and the Court of Appeal, in accordance with the power
available to it pursuant to s 37O(1)(c) of the Supreme Court Act 1933 (ACT) (Supreme
Court Act) remitted the matter to me.
26. That section provides:
37O Orders on appeal
(1) The Court of Appeal has the following powers in relation to the order appealed from: …
(c) to set aside the order (completely or in part) and remit the proceeding to the court constituted by a single judge for further hearing and decision,
subject to any directions the Court of Appeal considers appropriate.
(emphasis added)
27. It is clear from the text of s 37O(1)(c) that the Court of Appeal has the power to provide
directions limiting the scope of the remittal.
28. The question now before me is, in effect, whether the remittal is limited to consideration
of the impact of any change in value of the deceased’s residence to my original
determination of the family provision claim. If so, the plaintiff has abandoned that claim.
29. Turning to that issue, the plaintiff, in written submissions, submitted that:
The Defendants have attempted to frame paragraph 74 as limiting the scope of the
rehearing to the consideration of the change in the value of the deceased former
residence. This is a misconstruction. Paragraph 74 describes why the Court of Appeal has chosen to remit the making of final orders to the Supreme Court, rather than make the
dispositive orders itself …
(emphasis added)
30. The plaintiff submitted that this conclusion was made clear by the wording of order 2 with
the Court of Appeal ordering that the matter be remitted “for determination in accordance
with the reasons of the Court of Appeal”.
31. The plaintiff submitted that what is at the core of order 2 is a direction that this Court
determine the appropriate remedy or remedies that the plaintiff is entitled to as a result
of the Court of Appeal’s findings in relation to ground three of the appeal.
32. The plaintiff noted that there is nothing in the terms of the order limiting the sections of
the Appeal Judgment that this Court should consider and that “the whole of [the Court of
Appeal’s] determination must be brought to bear on the findings of the original decision”.
33. The plaintiff submitted that if the Court of Appeal’s conclusion on the Cheques Act is
applied, his arguments in relation to his bequest case have prevailed and he is entitled
to a remedy.
34. The plaintiff noted that his appeal was successful, and the nature of a successful appeal
supported his submission that it is now for this Court to determine the appropriate
remedy. In particular, the plaintiff submitted that:
A Court of Appeal will reject an appeal that highlights valid technical deficiencies in a judgment if it does not materially alter the outcome. When a decision is corrected by an appellate court, but the outcome is unaltered, the result is that the appeal is rejected.
35. The defendants submitted that, in light of the decision of the Court of Appeal, this Court
does not have jurisdiction to consider the relief now sought by the plaintiff. The
defendants’ submission, in effect, is that the only matter this Court can consider following
the remittal is whether any different order should be made regarding the family provision
claim resulting from any change in value of the deceased’s former residence.
36. The defendants (in reply submissions) noted that the declaration sought by the plaintiff
effectively is a declaration as to the legal position between the second defendant (as
trustee) and third defendant (as executor). The defendants submitted that there is “no
controversy” between those defendants and as such the declaration sought would be of
no utility in that scenario referring to well-settled principles from Ainsworth v Criminal
Justice Commission (1992) 175 CLR 564 (Ainsworth).
37. The defendants submitted that the purpose and scope of the remittal is apparent from
[74] of the Appeal Judgment. The defendants submitted that, as that paragraph makes
clear, the order that was sought by the plaintiff (and ultimately granted by the Court of
Appeal) was for the matter to be remitted “to the trial judge for further consideration of
the family provision claim”.
38. As the plaintiff has now abandoned any argument relating to the family provision claim,
the defendants submitted that the plaintiff’s claim must be dismissed, and judgment
ordered for the defendants.
39. The defendants noted that the plaintiff was successful in relation to his third ground of
appeal, but that the effect of this success is explained in the final sentence of [73] of the
Appeal Judgment. Namely, that the estate is now to be administered on the basis that
there is no liability to the trust.
40. The defendants also advanced submissions outlining why the orders now sought by the
plaintiff should not be made. In relation to the declaration, the defendants submitted that
there is no remaining controversy between the parties as the Court of Appeal has already
resolved the matter.
41. In relation to the submissions concerning the constructive trust, the defendants submitted
that the order the plaintiff now seeks of a constructive trust in his favour differs from the
order sought in the original proceedings which was a constructive trust in favour of the
estate. The defendants submitted that there is no justification contained in the plaintiff’s
submissions as to why such a remedy should be granted.
42. The plaintiff, in reply submissions, submitted that the defendants’ submissions
misconstrue the Court of Appeal’s reasons and “do not explain why the Court of Appeal
would grant an appeal on a futile issue”.
Consideration
43. In my view, it is clear that the Court of Appeal remitted the matter to this Court solely to
consider the family provision claim.
44. So much is apparent from [74] of the Appeal Judgment and, in particular, the statement
by the Court of Appeal that:
… if the appeal was allowed, amongst the orders sought was an order remitting the matter
to the trial judge for further consideration of the family provision claim because of the potential
for the principal asset of the Estate, the deceased’s former residence, to have increased in
value … Given the passage of time since the matter was heard by the primary judge,
whether or not further evidence of value is permitted and what consequences flow from the admission of any further evidence are matters best resolved by the primary
judge before whom all of the evidence was led and who saw and heard the witnesses.
(emphasis added)
While I accept the plaintiff’s submission that this Court should consider the whole of the
Court of Appeal’s reasons, that submission does not aid the plaintiff.
46. While the order that was ultimately entered was expressed in general terms, namely: “for
determination in accordance with the reasons of the Court of Appeal”, it is tolerably clear
from the reasons (especially paragraphs [74]-[75]) that the remittal was being made for
further consideration of the family provision claim only.
This is apparent from analysis of the conclusions in relation to ground 3 of the plaintiff’s
appeal. Ultimately, the Court of Appeal determined that I erred in my interpretation of the
Cheques Act. The result of that error was that I was incorrect in finding that there was a
liability to the trust. As the Court of Appeal explained at [73] “[t]he Estate was therefore
to be administered on the basis that there was no liability to the Trust”. This did not,
however, lead to any change in the legal position of the plaintiff’s entitlement under the
deceased’s will given my unchallenged findings in relation to the family provision claim.
48. This explains why the Court of Appeal remitted the matter to me to consider whether the
change of the value of the deceased’s former residence should have any impact on my
original findings in relation to the family provision claim. This is because, as explained
above, absent any successful family provision claim the effect of the Court of Appeal’s
reasons is simply that the estate is to be administered on the basis that there was no
liability to the trust.
49. That approach is reinforced by the Court of Appeal’s decision in relation to costs, which
the Court of Appeal outlined at [75]:
75. Although the appeal has been successful, given that it was brought in the face of a conclusion by the primary judge that the appellant had not established that adequate provision for his proper maintenance, education or advancement was not made in the
deceased’s will, it is appropriate that the costs of the appeal form part of the costs of
the proceedings in the Supreme Court.
50. As is clear from that paragraph, the plaintiff’s appeal was brought in the face of a
conclusion that the plaintiff had not established his family provision claim. The Court of
Appeal while accepting the plaintiff’s arguments on ground 3, determined that the costs
of the appeal should form part of the costs of the remitted proceedings as, if the plaintiff
was successful in the remitted family provision claim he would have been successful in
obtaining an actual remedy from the estate.
This finding disposes of the plaintiff’s submission that the defendants’ approach would
portray the plaintiff’s success in the Court of Appeal as of no consequence. The plaintiff’s
success in the Court of Appeal was limited in relation to ground 3. The plaintiff’s success
on that ground led to the Court of Appeal stating that the estate was to be administered
on the basis there is no liability to the trust. The plaintiff’s success also led the Court of
Appeal to remit the matter for further consideration of the family provision claim.
52. The plaintiff, having now abandoned that claim, is not now entitled to argue that some
different remedy should be granted by this Court in accordance with the Court of Appeal’s
reasons.
53. That is not to say that a Court of Appeal could not remit a matter to a primary judge to
determine remedy. Where, for example, in a particular matter a judge had reached a
conclusion that there was no liability and had not assessed damages it may well be
desirable to remit a matter to determine damages. This is not such a case.
54. The Court of Appeal, having heard the plaintiff’s arguments determined that the
appropriate remedy was to make orders setting aside the orders made on 24 March 2021
and remitting the matter to me for further consideration of the family provision claim due
to the potential change in value of the deceased’s former residence.
55. The choice made at the subsequent hearing before me to abandon any argument on the
family provision claim was a forensic choice made by the plaintiff. The Court can only
assume that the decision to abandon any further argument in relation to the family
provision claim was made following legal advice. The effect of that forensic choice is that
there is nothing for me to consider. The defendants are, accordingly, entitled to judgment
in their favour.
Conclusion
56. For the reasons given above, I am of the view the Appeal Judgment limited the scope of
the remittal to consideration of the family provision claim only. Further argument on the family provision claim having been abandoned, judgment will be entered for the
defendants.
57. In relation to costs, the costs will follow the event. Accordingly, there will be an order that
the plaintiff pay the defendants costs of the proceeding as assessed or agreed.
58. The effect of that costs order will mean that the defendants are also entitled to their costs
of the appeal as a result of order 3 of the orders of the Court of Appeal.
In accordance with the Court of Appeal’s reasons, the estate is to be administered on
the basis there is no liability to the trust.
Orders
60. I make the following orders:
1. Judgment for the defendants.
2. The plaintiff is to pay the defendants’ costs of the proceeding as assessed or agreed.
I certify that the preceding sixty [60] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Loukas-Karlsson
Associate: Andrew Ray
Date: 20 October 2022
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