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…