Ross v Gordon (No 3) - [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…

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.

Continue reading Ross v Gordon (No 3)

Details

AGLC: Ross v Gordon (No 3) [2022] ACTSC 289
Case: [2022] ACTSC 289
Decision Date: 25 August 2022

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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