Telfer v Telfer - [2013] NSWCA 330

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Telfer v Telfer [2013] NSWCA 330
Hearing dates: 30 September 2013
Decision date: 30 September 2013
Before: Meagher JA
Decision:
(1) Order that the administration of the Estate to the extent of the making of any payments or distributions to creditors of the estate be stayed until the disposition of the application for leave to appeal and, if leave is granted, the disposition of the appeal.
(2) Order that the applicant's motion filed on 10 September 2013 otherwise be dismissed.
(3) Order that the costs of that application be costs in the application for leave to appeal and appeal.
[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: PROCEDURE - judgments and orders - stay of execution - application for stay of administration of deceased estate and costs order pending hearing of application for leave to appeal - no question of principle
Legislation Cited: Supreme Court Act 1970, s 75A
Cases Cited: Adeels Palace Pty Ltd v Moubarak [2009] NSWCA 130
Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685
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
Phoenix Commercial Enterprises Pty Ltd v City of Canada Bay Council [2010] NSWCA 64
Category: Interlocutory applications
Parties: Neil Ronald Telfer as executor for the estate of the late Lyall Telfer (Applicant)
Carolyn Telfer (First Respondent)
NSW Trustee and Guardian (Second Respondent)
Representation: Counsel:
M K Rollinson (Applicant)
C Carroll (First Respondent)
No appearance (Second Respondent)
Solicitors:
Barrak Lawyers (Applicant)
Whitehead Cooper Williams (First Respondent)

File Number(s): 2013/205049
Decision under appeal

Jurisdiction:

9111

Citation:

Neil Ronald Telfer as Executor for the Estate of the late Lyall Telfer v Carolyn Telfer (No. 2) [2013] NSWSC 823

Date of Decision:

2013-06-21 00:00:00

Before:

Slattery J

File Number(s):

2011/283114

Judgment

MEAGHER JA: By a notice of motion filed on 10 September 2013 the applicant (Neil Telfer) sought a stay under Uniform Civil Procedure Rules, r 51.44 of certain orders made by Slattery J on 14 June 2013: see Neil Ronald Telfer as Executor for the Estate of the late Lyall Telfer v Carolyn Telfer (No 2) [2013] NSWSC 823 at [33]. Those orders were made in proceedings in which the applicant sought a grant of probate in solemn form of the will and codicil of his brother Lyall Telfer, who died on 14 May 2011: Neil Ronald Telfer as Executor for the Estate of the late Lyall Telfer…

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 Telfer

Details

AGLC: Telfer v Telfer [2013] NSWCA 330
Case: [2013] NSWCA 330
Decision Date: 30 September 2013

CaseChat Overview and Summary

In *Telfer v Telfer*, the applicant sought a stay of the administration of a deceased estate and a costs order pending the hearing of an application for leave to appeal. The application was heard by Meagher JA.

The central legal issue before the Court was whether to grant a stay of the administration of the estate, specifically concerning payments or distributions to creditors, and the costs order, pending the determination of the application for leave to appeal and any subsequent appeal.

Meagher JA considered the application for a stay. The Court noted that there was no question of principle involved in the proposed appeal. Consequently, the Court ordered that the administration of the Estate, to the extent of making any payments or distributions to creditors, be stayed until the disposition of the application for leave to appeal and, if leave were granted, the disposition of the appeal. The applicant's motion filed on 10 September 2013 was otherwise dismissed, with the costs of that application to be costs in the application for leave to appeal and the appeal.

Orders

Orders of the court

(1) Order that the administration of the Estate to the extent of the making of any payments or distributions to creditors of the estate be stayed until the disposition of the application for leave to appeal and, if leave is granted, the disposition of the appeal.

(2) Order that the applicant's motion filed on 10 September 2013 otherwise be dismissed.

(3) Order that the costs of that application be costs in the application for leave to appeal and appeal.

[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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Telfer v Telfer [2013] NSWCA 330
Hearing dates:	30 September 2013
Decision date:	30 September 2013
Before:	Meagher JA
Decision:	(1) Order that the administration of the Estate to the extent of the making of any payments or distributions to creditors of the estate be stayed until the disposition of the application for leave to appeal and, if leave is granted, the disposition of the appeal. (2) Order that the applicant's motion filed on 10 September 2013 otherwise be dismissed. (3) Order that the costs of that application be costs in the application for leave to appeal and appeal. [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:	PROCEDURE - judgments and orders - stay of execution - application for stay of administration of deceased estate and costs order pending hearing of application for leave to appeal - no question of principle
Legislation Cited:	Supreme Court Act 1970, s 75A
Cases Cited:	Adeels Palace Pty Ltd v Moubarak [2009] NSWCA 130 Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 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 Phoenix Commercial Enterprises Pty Ltd v City of Canada Bay Council [2010] NSWCA 64
Category:	Interlocutory applications
Parties:	Neil Ronald Telfer as executor for the estate of the late Lyall Telfer (Applicant) Carolyn Telfer (First Respondent) NSW Trustee and Guardian (Second Respondent)
Representation:	Counsel: M K Rollinson (Applicant) C Carroll (First Respondent) No appearance (Second Respondent) Solicitors: Barrak Lawyers (Applicant) Whitehead Cooper Williams (First Respondent)
File Number(s):	2013/205049
Decision under appeal	Jurisdiction: 9111 Citation: Neil Ronald Telfer as Executor for the Estate of the late Lyall Telfer v Carolyn Telfer (No. 2) [2013] NSWSC 823 Date of Decision: 2013-06-21 00:00:00 Before: Slattery J File Number(s): 2011/283114