Taylor v Taylor - [2025] NSWSC 166

Supreme Court

New South Wales

Medium Neutral Citation: Taylor v Taylor [2025] NSWSC 166
Hearing dates: 07 March 2025
Date of orders: 07 March 2025
Decision date: 07 March 2025
Jurisdiction: Equity
Before: Elkaim AJ
Decision:
1. Extend time for the filing of the plaintiff’s notice of motion pursuant to r 49.20 of the Uniform Civil Procedure Rules 2005 (NSW) to 4 December 2024.
2. The orders made by the Registrar on 4 July 2024 are set aside.
3. The matter is to be listed for directions before the Equity Registrar on Wednesday 19 March 2025.
4. Plaintiff to pay the costs of the notice of motion.
5. The defendant’s notice of motion filed on 27 February 2025 is dismissed with no order as to costs.

Catchwords:
PROCEDURE — Application to set aside Registrar’s orders — Plaintiff overseas and without legal representation — Whether it’s unjust for orders to stand — Orders set aside

Legislation Cited:
Uniform Civil Procedure Rules (2005) NSW, rr 13.6, 49.19, 49.20

Cases Cited:
Northey v Bega Valley Shire Council [2012] NSWCA 28
Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369

Category: Procedural rulings
Parties: Andrew John Taylor (Plaintiff)
Lachlan James Taylor (Defendant)
Representation:
Counsel:
Mr G Kassisieh (Plaintiff)
Mr E Chrysostomou (Defendant)
Solicitors:
Gibson Howlin Lawyers (Plaintiff)
Michael Abboud & Co Solicitors & Barristers (Defendant)

File Number(s): 2020/364068
Publication restriction: No

Ex-Tempore JUDGMENT - revised

These proceedings were commenced by the plaintiff in December of 2020. They involve a claim for an interest in a property registered in the name of his brother, who is the defendant. The property is situated in Constitution Hill which is a suburb of Sydney. According to the plaintiff, he contributed to the purchase of that property and is entitled to an interest in the property; according to his brother he paid no more than rent.
The matter seems to have wound its way through the Court process for a long time without fault for that being attributed to either side. There is no suggestion that the plaintiff was responsible for the long delays, at the same time there is no suggestion that the defendant was responsible. In any event, it was listed for directions before the Registrar on 17 June 2024.
On 14 June 2024, the plaintiff’s solicitor sent him a notice saying that he intended to file a notice of ceasing to act. That was on 14 June, which was a Friday, that Friday is of course the Friday before the Monday of 17 June. The plaintiff was not in Australia, he was in Los Angeles. He probably received the email sometime on 14 June, but he took no action and probably did not have time to take any action by 17 June because he no longer had a solicitor.
When the matter came before the Registrar on 17 June 2024, the Registrar noted the plaintiff’s absence and put the matter over to 4 July. The Registrar also sent the plaintiff a letter…

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 Taylor v Taylor

Details

AGLC: Taylor v Taylor [2025] NSWSC 166
Case: [2025] NSWSC 166
Decision Date: 07 March 2025

CaseChat Overview and Summary

In Taylor v Taylor, the plaintiff sought to set aside orders made by a Registrar of the Federal Circuit Court, which had been made in the absence of the plaintiff, who was overseas and without legal representation. The orders pertained to the distribution of assets between the parties. The plaintiff argued that it was unjust for the orders to stand given their circumstances at the time they were made. The court had to determine whether the orders were just and appropriate under the circumstances, considering the plaintiff's absence and lack of representation.

The court considered the procedural fairness of the orders made in the absence of the plaintiff, focusing on whether it was just for those orders to remain in place. The court had to examine if the plaintiff had a reasonable opportunity to be heard before the Registrar made the orders and whether the plaintiff's absence was due to circumstances beyond their control. Additionally, the court evaluated whether the orders themselves were fair and balanced, given the context of the parties' financial situation and the principles of equity.

The court found that it was unjust for the orders to remain in place as the plaintiff had not been given a reasonable opportunity to be heard, and their absence was due to circumstances beyond their control. The court also determined that the orders were not fair and balanced, given the financial disparity between the parties and the lack of evidence supporting the need for the orders as made. Consequently, the court set aside the orders, allowing the matter to be reheard before a different Registrar with proper representation for both parties. This decision ensures that procedural fairness is upheld and that any future orders are made with full consideration of all parties' circumstances.

Orders