Telfer v Fairfax (No 3) - [2016] NSWSC 895

Supreme Court

New South Wales

Medium Neutral Citation: Telfer v Fairfax (No 3) [2016] NSWSC 895
Hearing dates: On the papers
Date of orders: 28 June 2016
Decision date: 28 June 2016
Jurisdiction: Equity
Before: Robb J
Decision:
See par 27

Catchwords:
CONVEYANCING – Matters arising after completion – other matters – deposit – second defendant purchaser entitled to credit for balance of deposit held in trust by first defendant administrator of the estate of the vendor – second defendant had been ordered to complete the contract for sale following an order for specific performance sought by the second defendant without being given credit for the balance of the deposit – first defendant ordered to return balance of deposit to second defendant – no issue of principle
COST ORDERS – entitlement of first defendant administrator to his fees and expenses as administrator and as first defendant in the proceedings – first defendant had accepted appointment on the basis of a promise by the plaintiff that any shortfall in the capacity of the estate to meet his fees and expenses would be paid in priority to any obligation of the estate to the plaintiff – orders made to ensure plaintiff responsible for first defendant’s fees and expenses – no issue of principle
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW)
Category: Consequential orders (other than Costs)
Parties: Carolyn Telfer (plaintiff)
Kenneth John Fairfax in his capacity as administrator of the estate of Lyall Telfer (first defendant)
Mark Andrew Telfer (second defendant)
Representation:
Counsel: A G Martin (plaintiff)
M Rollinson (second defendant)
Solicitors: Whitehead Cooper Williams (plaintiff)
Fairfax Lawyers (first defendant)
Mark Rahme (second defendant)

File Number(s): 2014/370020
Publication restriction: None

Judgment

I delivered my primary judgment on the issues in dispute between the plaintiff, Ms Telfer, and the second defendant, Mr Mark Telfer, on 12 February 2016: see Telfer v Fairfax [2016] NSWSC 60.
I delivered a judgment on outstanding costs issues on 18 May 2016 see Telfer v Fairfax (No 2) [2016] NSWSC 639.
The first defendant, Mr Fairfax, is the administrator with the will annexed of the late Lyall Telfer. Ms Fairfax was Lyall’s wife. Mr Mark Telfer was Lyall’s son.
In short, I decided in the principal judgment that Mr Fairfax, as administrator of Lyall’s estate, was liable to pay a debt to Ms Telfer, and that Ms Telfer had a charge over the only substantial asset of the estate, being a residential property at 39 Hammers Road, Northmead, to secure repayment of the debt. I also found that Mr Fairfax, as administrator of Lyall’s estate, was obliged to specifically perform a contract that Lyall had entered into before his death to sell the Northmead Property to Mark Telfer. As the total amount of the judgment I entered in favour of Ms Telfer was greater than the amount that the evidence suggested was the balance of the purchase price, payable by Mark Telfer on completion of the contract, Mark Telfer found himself in the position where…

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 Telfer v Fairfax (No 3)

Details

AGLC: Telfer v Fairfax (No 3) [2016] NSWSC 895
Case: [2016] NSWSC 895
Decision Date: 28 June 2016

CaseChat Overview and Summary

The case of Telfer v Fairfax (No 3) involved a dispute over a deposit held in trust by the first defendant, who was the administrator of the estate of the vendor, following the completion of a contract for sale. The second defendant, the purchaser, had been ordered to complete the contract for sale after an order for specific performance was granted, but had not been given credit for the balance of the deposit held by the first defendant. The second defendant sought the return of the balance of the deposit from the first defendant. The court was required to determine whether the second defendant was entitled to credit for the balance of the deposit held by the first defendant and whether the first defendant was entitled to his fees and expenses as administrator and as first defendant in the proceedings.

The court held that the second defendant was entitled to credit for the balance of the deposit held by the first defendant. The court found that there was no issue of principle in ordering the first defendant to return the balance of the deposit to the second defendant. The court also held that the first defendant was entitled to his fees and expenses as administrator and as first defendant in the proceedings. The court found that the first defendant had accepted appointment on the basis of a promise by the plaintiff that any shortfall in the capacity of the estate to meet his fees and expenses would be paid in priority to any obligation of the estate to the plaintiff. The court made orders to ensure that the plaintiff was responsible for the first defendant’s fees and expenses.

The court made orders that the first defendant was to return the balance of the deposit to the second defendant and that the plaintiff was responsible for the first defendant’s fees and expenses. The court found that there was no issue of principle in making these orders. The court did not make any further orders.

Orders