Telfer v Telfer (No 2)

[2014] NSWCA 250

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Telfer v Telfer (No 2) [2014] NSWCA 250

Hearing dates:

8 July 2014

Decision date:

31 July 2014

Before:

Sackville AJA

Decision:

1. The applicant be granted leave to amend the summons for leave to appeal to substitute Kenneth John Fairfax, in his capacity as administrator of the Estate of the late Lyall Telfer, as second respondent in place of the NSW Trustee and Guardian.

2. Direct the applicant to file and serve on each of the respondents an amended summons for leave to appeal.

3. Otherwise dismiss the applicant's notice of motion filed on 4 July 2014.

4. No order as to the costs of the motion.

[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:

PRACTICE AND PROCEDURE - joinder of the administrator of the estate to an appeal against costs orders

COSTS - no basis for indemnifying the appellant from the assets of the estate - appeal against costs order to be allowed without prejudice to costs orders made in interlocutory proceedings below

Legislation Cited:

Supreme Court Act 1970 (NSW), s 46(2)(b)

Cases Cited:

Neil Ronald Telfer as Executor for the Estate of the late Lyall Telfer v Carolyn Telfer (No 2) [2013] NSWSC 823
Telfer v Telfer [2013] NSWCA 330
Telfer v Telfer [2014] NSWCA 186

Category:

Procedural and other rulings

Parties:

Neil Ronald Telfer (Applicant / Appellant)
Carolyn Telfer (First Respondent)
Kenneth John Fairfax, in his capacity as administrator of the estate of the late Lyall Telfer (Second Respondent)

Representation:

Counsel:
M K Rollinson (Applicant / Appellant)
D Williams (First Respondent)
In person (Second Respondent)
Solicitors:
Barrak Lawyers (Applicant / Appellant)
Whitehead Cooper Williams (First Respondent)
Fairfax Lawyers (Second Respondent)

File Number(s):

2013/205049

Publication restriction:

None

 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:

2013-06-14 00:00:00

Before:

Slattery J

File Number(s):

2011/283114

Judgment

1. SACKVILLE AJA: On 13 June 2014, the Court delivered judgment in this appeal. The judgment recorded the orders the Court proposed to make in the proceedings (Proposed Orders), subject to steps being taken to join the administrator of the estate of the late Lyall Telfer: Telfer v Telfer [2014] NSWCA 186 (Principal Judgment) at [111]-[116]. The Court made the following orders:

"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."

The matter was listed for directions on 8 July 2014.

1. The applicant did not comply with the directions in a timely fashion. He filed a notice of motion and a supporting affidavit on 4 July 2014, but did not serve them on the respondent and the Administrator until very shortly before the directions hearing.

1. The applicant's motion sought the following orders:

"1 The Applicant have leave to amend the Summons for Leave to Appeal to substitute as Second Respondent, in place of the NSW Trustee and Guardian, Kenneth John Fairfax, in his capacity as administrator of the Estate of the late Lyall Telfer.

2 The order staying the administration of the Estate, made on 30 September 2013 by Meagher JA, be extended until payment by the Respondent of the Applicant's costs of the application for leave to appeal, and of the appeal, to the extent that such costs are ordered to be paid by the Court of Appeal.

3 The Respondent is to deliver within 7 days to the administrator, Kenneth John Fairfax, the original Certificate of Title for the Northmead property, together with a Withdrawal of Caveat form in registrable form to withdraw her caveat presently registered on title to the Northmead property.

4 That proposed Order 3 is to read:

"Set aside Orders 5 and 6 made by the primary Judge on 21 June 2013."

In lieu thereof, and excluding interlocutory costs orders made in the proceedings below, order that each party pay his or her own costs of the proceedings."

1. At the directions hearing, Mr Rollinson appeared for the applicant and Mr Williams for the respondent (Ms Telfer). The Administrator (who is a solicitor) appeared in person.

Paragraph 1 of the Motion

1. The Administrator indicated that he had no objection to being joined as a party to the appeal. Mr Williams also had no objection to the Court making the order sought in par 1 of the motion. It is accordingly appropriate that an order to that effect be made. A single Judge of Appeal has power to make the order: Supreme Court Act 1970 (NSW), s 46(2)(b).

1. As stated at the hearing, it will be necessary for the applicant to file an amended summons for leave to appeal substituting the Administrator for the New South Wales Trustee and Guardian as the second respondent to the appeal. Provision will be made in the final orders of the Court for the filing of a notice of appeal which names the Administrator as the second respondent.

Paragraph 2 of the Motion

1. The applicant submitted that the order made by Meagher JA on 30 September 2013 staying the administration of the estate should be continued in order to secure the applicant's entitlement to costs under the Proposed Orders. The main rationale for the stay granted by Meagher JA was to protect the applicant's position in the event that his appeal succeeded and a costs order was made entitling him to be indemnified out of the estate in priority to the payment of other debts of the insolvent estate: Telfer v Telfer [2013] NSWCA 330 at [23]. Although the Proposed Orders allow the applicant's appeal, no order is proposed that would entitle the applicant to an indemnity from the assets of the estate.

1. In these circumstances, the applicant has not demonstrated any basis for extending the stay beyond the pronouncement of final orders (when the stay will expire in its own terms). The fact that the respondent may have few assets other than her interest in the estate (as the evidence suggests) does not justify extending the stay.

Paragraph 3 of the Motion

1. As Mr Rollinson acknowledged, the relief sought in par 3 of the motion was not sought by the applicant in the proceedings in the Equity Division. In any event, the applicant has no interest that would entitle him to obtain such an order.

Paragraph 4 of the Motion

1. Proposed Order 3 in the Principal Judgment at [111] is as follows:

"Set aside Orders 5 and 6 made by the primary Judge on 14 June 2013."

The applicant submitted that "21 June 2013" should be substituted for "14 June 2013" as Orders 5 and 6 were made by the primary Judge on 21 June 2013. The other parties agreed that Proposed Order 3 required amendment.

1. Although the primary Judge delivered the judgment (Neil Ronald Telfer as Executor for the Estate of the late Lyall Telfer v Carolyn Telfer (No 2) [2013] NSWSC 823) on 21 June 2013, his Honour made Orders 5 and 6 on 14 June 2013: see [33]. There is therefore no error in Proposed Order 3.

1. The applicant further submitted that Proposed Order 3 in the Principal Judgment should be amended to make it clear that costs orders made in the proceedings prior to the hearing before the primary Judge on 13-14 August 2012 are not to be disturbed. The parties did not provide details of the costs orders made in interlocutory proceedings, but I was informed that there were two such orders, one in favour of the applicant and one in favour of the respondent.

1. There is something to be said for regarding each order as cancelling out the other. However, in the absence of further information, it is appropriate for Proposed Order 3 to be amended so that it reads as follows:

"Without prejudice to costs orders made in the proceedings prior to 13 August 2012, set aside Orders 5 and 6 made by the primary Judge on 14 June 2013."

Role of the Administrator

1. The Administrator stated that he did not wish to make any submissions in relation to the Proposed Orders or to participate in the appeal beyond appearing at the directions hearing.

Orders

1. I make the following orders on the applicant's notice of motion:

1. The applicant be granted leave to amend the summons for leave to appeal to substitute Kenneth John Fairfax, in his capacity as administrator of the Estate of the late Lyall Telfer, as second respondent in place of the NSW Trustee and Guardian.

1. Direct the applicant to file and serve on each of the respondents an amended summons for leave to appeal.

1. Otherwise dismiss the applicant's notice of motion filed on 4 July 2014.

1. No order as to the costs of the motion.

1. Final orders in the appeal will need to be made by the members of the Court who heard the appeal. I anticipate that the following orders will be made:

1. Grant the applicant leave to appeal limited to the costs orders made by the primary Judge on 14 June 2013.

1. Allow the appeal.

1. Direct the applicant to file an amended notice of appeal naming Kenneth John Fairfax, in his capacity as administrator of the estate of the late Lyall Telfer, as the second respondent in place of the NSW Trustee and Guardian.

1. Without prejudice to costs orders made in the proceedings prior to 13 August 2012, set aside Orders 5 and 6 made by the primary Judge on 14 June 2013.

1. In lieu of Orders 5 and 6 made by the primary Judge on 14 June 2013 and without prejudice to costs orders made in the proceedings prior to 13 August 2012, order each party pay his or her costs of the proceedings.

1. The first respondent pay 75 per cent of the appellant's costs of the appeal (including the application for leave to appeal, but excluding the costs of the applicant's motion to adduce further evidence).

1. The first respondent, if otherwise qualified, have a certificate under the Suitors' Fund Act 1951 (NSW).

1. I note that prior to the delivery of this judgment I was informed that the applicant had filed in the Registry an amended summons for leave to appeal and an amended notice of appeal. It is for that reason that the orders set out in [15] and the proposed orders set out in [16] do not include time limits for the filing of these documents.

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Decision last updated: 31 July 2014