Shannessy v Beattie

[2012] NSWCA 88

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Shannessy v Beattie & Ors [2012] NSWCA 88

Hearing dates:

2 April 2012

Decision date:

17 April 2012

Before:

Basten JA at 1;
Sackville AJA at 1

Decision:

(1) Dismiss the application for leave to appeal.

(2) Applicant to pay the costs of the first respondent in this Court.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

APPEAL - civil - where matter in issue amounting to $100,000 or less - amount in issue, excluding costs, approximately $17,000 - arguable case for appeal against primary judge's conclusions of law - leave to appeal not ordinarily granted merely for arguable case - no question of principle

Legislation Cited:

Civil Procedure Act 2005

Cases Cited:

Beattie v Daly [2011] NSWSC 1023
Bushby v Dixon Holmes du Pont Pty Ltd [2012] NSWCA 90

Category:

Principal judgment

Parties:

Michael Dennis Shannessy (Applicant)
Janelle Dianne Beattie (First Respondent)
Peter David Shannessy (Second Respondent)
Garry John Daly (Third Respondent)

Representation:

N M H Kirby - Applicant
L J Ellison SC - Respondents
Clamenz Corporate Lawyers - Applicant
M Trevillion - Respondents

File Number(s):

2008/310031

 Decision under appeal 

Citation:

Beattie v Daly [2011] NSWSC 1023

Date of Decision:

2011-09-01 00:00:00

Before:

Gzell J

File Number(s):

2008/310031

Judgment

1. THE COURT: This application for leave to appeal involves a very small amount of money, although there is a rather larger amount in dispute by reason of the cost orders made by the primary Judge. We set out below the background to the application.

1. The applicant, Michael Shannessy, is one of four nephews, of the late Isabel Maud (Betty) Webb. The first respondent, Janelle Beattie, was Ms Webb's only niece.

1. Ms Webb died on 26 December 2007, leaving the bulk of her estate to be distributed among Mr Michael Shannessy, Ms Beattie and Ms Webb's three other nephews. The executors of Ms Webb's estate were two of the nephews, Michael Shannessy (the applicant) and Garry Daly (the third respondent).

1. The primary asset in the estate was a home unit, which was ultimately sold for approximately $450,000. At her death, Ms Webb also held an account with the Uniting Church (NSW) Trust Association Ltd, also referred to as Uniting Financial Services ("UFS"), which had a credit balance of $28,180.

1. On 15 December 2007, Ms Webb signed a paper authorising UFS to terminate the account and pay the balance to Ms Beattie. On the findings made by the primary Judge (Gzell J), a letter containing the authorisation was posted on 16 December 2007, although it was not received by UFS until 24 December 2007.

1. On 27 December 2007, UFS,…