Telfer v Telfer

Case [2014] NSWCA 186

Court of Appeal


Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Telfer v Telfer [2014] NSWCA 186
Hearing dates:14, 15 May 2014
Decision date: 13 June 2014
Before: Macfarlan JA at [1];
Gleeson JA at [2];
Sackville AJA at [3]
Decision:

1. Direct the applicant (Neil Telfer) to file and serve a motion seeking leave to join the administrator of the estate of Lyall Telfer (deceased) (Administrator) as a respondent to the appeal.

2. Direct the applicant to file and serve the motion and any supporting affidavit within fourteen days.

3. Direct that in addition to the motion and supporting affidavit, the applicant serve on the Administrator within fourteen days copies of this judgment and the appeal books.

4. The matter be relisted for directions at 9:30 am on 3 July 2014.

[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 - application to adduce further evidence - evidence could have been obtained through reasonable diligence for use at trial - evidence not likely to have led to a different result at trial

APPEAL - Leave to appeal against costs orders only - whether costs orders based on findings not justified by evidence - primary judge made findings of very serious misconduct based on the credibility of witnesses and adverse inferences drawn from evidence - failure to take into account the gravity of the allegations or matters bearing on the inherent probability that such misconduct occurred - whether appellate intervention is justified in the circumstances

APPEAL - application of Supreme Court Act 1970 (NSW) s 75A - not in the interests of justice to order a new trial in circumstances where the appellant no longer sought to disturb the substantive orders
Legislation Cited: Evidence Act 1995 (NSW) s 140
Succession Act 2006 (NSW) s 6
Supreme Court Act 1970 (NSW) ss 63, 75A, 101(2)
Cases Cited: Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336
CDJ v VAJ [1998] HCA 67; 197 CLR 172
Devries v Australian National Railways Commission [1993] HCA 78; 177 CLR 472
Fox v Percy [2003] HCA 22; 214 CLR 118
Gawne v Gawne [1979] 2 NSWLR 449
Hampson v Hampson [2010] NSWCA 359
John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd [2010] HCA 19; 241 CLR 1
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; 67 ALJR 170
Neil Ronald Telfer as Executor for the Estate of the late Lyall Telfer v Carolyn Telfer [2013] NSWSC 412
Neil Ronald Telfer as Executor for the Estate of the late Lyall Telfer v Carolyn Telfer (No. 2) [2013] NSWSC 823

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AGLC
Telfer v Telfer [2014] NSWCA 186
Case
[2014] NSWCA 186
Decision Date

CaseChat Overview and Summary

This case concerned an appeal by Neil Telfer against costs orders made by the primary judge in proceedings concerning the estate of the late Lyall Telfer. The primary judge had found that Neil, as executor, had engaged in proved misconduct by propounding a second codicil to the will which he knew did not bear Lyall Telfer's signature. Consequently, Neil was ordered to pay the costs of the proceedings personally, without indemnity from the estate. The appeal also involved an application to adduce further evidence and sought to set aside the primary judge's orders, including the appointment of an administrator for the estate.

The legal issues before the court included whether leave to appeal should be granted, given the amount in issue was less than $100,000. The court also had to consider whether the costs orders were justified, particularly in light of the primary judge's findings of serious misconduct based on credibility and adverse inferences, and whether the primary judge had adequately considered the gravity of the allegations and the inherent probabilities. Furthermore, the court was required to determine whether it was in the interests of justice to order a new trial, especially as the appellant no longer sought to disturb the substantive orders regarding the estate. The court also had to address procedural matters concerning the proper respondent to the appeal, given the appointment of an administrator for the estate.

The court noted that an application to adduce further evidence would likely fail as the evidence could have been obtained with reasonable diligence for the trial and was unlikely to have led to a different result. Regarding the appeal against costs orders, the court indicated that appellate intervention might be justified if the primary judge's findings of misconduct were not supported by the evidence or if the judge failed to consider relevant factors. However, the court also acknowledged that the Supreme Court Act 1970 (NSW) s 75A might preclude a new trial if it was not in the interests of justice. The court issued directions for the applicant to join the administrator of the estate as a respondent to the appeal and to file and serve the relevant motion and supporting documents.

The court ordered that Neil Telfer file and serve a motion seeking leave to join the administrator of the estate of Lyall Telfer (deceased) as a respondent to the appeal within fourteen days. In addition to the motion and supporting affidavit, Neil was directed to serve copies of the judgment and appeal books on the administrator within the same timeframe. The matter was then relisted for further directions.

Orders

Orders of the court

1. Direct the applicant (Neil Telfer) to file and serve a motion seeking leave to join the administrator of the estate of Lyall Telfer (deceased) (Administrator) as a respondent to the appeal.

2. Direct the applicant to file and serve the motion and any supporting affidavit within fourteen days.

3. Direct that in addition to the motion and supporting affidavit, the applicant serve on the Administrator within fourteen days copies of this judgment and the appeal books.

4. The matter be relisted for directions at 9:30 am on 3 July 2014.

[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.]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In a supplementary judgment delivered on 21 June 2013, his Honour concluded that Neil should be passed over as executor of the Will on the ground that "the present case is one of proved misconduct, not just of a conflict of interest": Neil Ronald Telfer as Executor for the Estate of the late Lyall Telfer v Carolyn Telfer (No. 2) [2013] NSWSC 823 (Second Judgment) at [9]. His Honour directed that the President of the Law Society nominate a person suitable to act as the administrator of Lyall's estate. The primary Judge found in the Second Judgment (at [23]) that it was Neil's deliberate conduct in propounding the Second Codicil, which he knew did not contain Lyall's signature, that caused costs to be incurred in the proceedings. His Honour also found (at [19]) that Neil could not rely on the general principle that an executor is entitled to be indemnified for costs out of the estate if he or she has acted honestly, since "Neil's pursuit of the litigation was not honestly mistaken". Accordingly, Neil was ordered to pay the costs of the proceedings personally, without the benefit of any indemnity out of the assets of Lyall's estate. According to information supplied by the applicant's representatives after the hearing of the appeal, the President of the Law Society nominated the New South Wales Trustee and Guardian (Trustee) to act as the administrator of the estate. Orders entered in Justice Link indicate that in fact the President of the Law Society was unable to nominate a suitable person and, in consequence, the Supreme Court ordered on 19 August 2013 that the Trustee be appointed as administrator. In any event, the Trustee declined to act and filed a motion to discharge the order appointing it as the administrator of the estate. On 4 November 2013, the primary Judge set aside the appointment of the Trustee and acceded to Carolyn's motion to appoint Mr KJ Fairfax, an independent legal practitioner, to act as administrator of the estate: Neil Ronald Telfer as Executor for the Estate of the late Lyall Telfer v Carolyn Telfer (No 3) [2013] NSWSC 1614. The orders appointing Mr Fairfax made no mention of either the Will or the Second Codicil, although the judgment appointing him suggests that it may have been intended to grant him Letters of Administration only of the Will (at [7], [28]). It appears that Mr Fairfax continues to be the administrator of the estate. Neil's summons for leave to appeal was filed on 10 September 2013, a notice of intention to appeal having previously been served. Leave was required because Neil accepted that the matters in issue on the appeal involved an amount less than $100,000: Supreme Court Act 1970 (NSW), s 101(2)(r). The summons named the Trustee as the second respondent. At that stage, the Trustee was the appointed administrator of Lyall's estate. The draft notice of appeal accompanying the summons for leave to appeal seeks orders setting aside the orders made by the primary Judge and granting Neil probate in solemn form of the Will and Second Codicil. The notice of appeal also seeks an order that Carolyn pay Neil's costs of the proceedings below and of the appeal.

Ratio Decidendi

Legal Principle Established

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