Telfer v Telfer (No 2)

[2013] NSWCA 356

Court of Appeal

New South Wales

Case Title:

Telfer v Telfer (No 2)

Medium Neutral Citation:

[2013] NSWCA 356

Hearing Date(s):

21 October 2013

Decision Date:

21 October 2013

Before:

Meagher JA

Decision:

Notice of Motion filed by Neil Telfer on 14 October 2013 dismissed with costs.

[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 - application to vary or set aside orders of the court - no question of principle

Legislation Cited:

Uniform Civil Procedure Rules 2005, r 36.16

Category:

Consequential orders

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:

Counsel:
M K Rollinson (Applicant)
C G Carroll (First Respondent)
R Pollard (Second Respondent)

- Solicitors:

Solicitors:
Barrak Lawyers (Applicant)
Whitehead Cooper Williams (First Respondent)

File Number(s):

2013/205049

Decision Under Appeal

- Court / Tribunal:

Supreme Court

- Before:

Slattery J

- Date of Decision: 

21 June 2013

- Citation:

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

- Court File Number(s):

2011/283114

JUDGMENT

1. MEAGHER JA: On 30 September 2013 the Court heard an application by Neil Telfer for a stay of execution of orders made by Slattery J on 14 June 2013. After hearing argument the Court made an order staying the administration of the estate and otherwise ordered that the applicant's motion be dismissed.

2. The Court has before it today a further motion of Neil Telfer brought under Uniform Civil Procedure Rules, Pt 36 r 16 seeking to vary the orders made on 30 September so as to provide that the order for costs made by Slattery J be stayed until the disposition of the application for leave to appeal and, if leave is granted, the disposition of the appeal. In support of that application Mr Telfer relies upon the affidavit of Benjamin Barrak sworn 14 October 2013.

3. On the earlier application there was evidence before the Court as to the amount of the costs and disbursements which Carolyn Telfer had incurred in the proceedings below. Those costs and disbursements were said to exceed $165,000. In paragraph 21 of my reasons for making the orders on 30 September I recorded:

   "[Carolyn Telfer's] evidence was that she had paid in excess of $150,000 in legal costs and it was stated from the bar table that the total of the amount claimed had been paid."

4. I should add that in her affidavit sworn and relied upon in that earlier application, Ms Telfer had said in paragraph 3 that she had "paid all of my legal bills to date" and in paragraph 11 that she "had had to pay over $150,000 out of my own pocket in legal costs."

5. On the application before the Court today Neil Telfer seeks to argue that in proceeding on the basis that those costs had been paid the Court acted upon a misapprehension of the facts because the true position was that those costs have not been paid. In support of that proposition Mr Telfer relies upon an application for assessment of party/party costs prepared on behalf of Carolyn Telfer in relation to the costs of the proceedings below. That application relevantly states in paragraphs 2 and 3:

   "2. The costs which are the subject of this application are the costs payable by the respondent as a result of an order of the Supreme Court of New South Wales Equity Division at Sydney in matter number 283114 of 2011 on 14/06/13.

   3. The costs have not been paid."

6. That reference to "the respondent" is to Neil Telfer. Mr Rollinson argues on behalf of Mr Telfer that the statement the "costs have not been paid" is to be understood as referring to the costs which Carolyn Telfer incurred in the proceedings below and not to the costs which Neil Telfer has been ordered to pay, being the costs of Carolyn Telfer incurred in the proceedings below.

7. In my view that submission must be rejected. Paragraph 2 of the application makes clear that the "costs" referred to in paragraph 3 are the costs which the primary judge ordered be paid by Neil Telfer. Paragraph 3 records that Neil Telfer has not complied with that order and paid those costs. That construction is the only sensible construction which paragraph 3 can bear in the context of that application for assessment. That being the position, the uncontested evidence of Carolyn Telfer remains that she has paid at least $150,000 and has paid all of her legal bills, allowing an inference that she has paid the full $165,000.

8. In the course of argument of this application it became clear that Carolyn Telfer's response to the notice to produce dated 24 September 2013 and called on the earlier application that she had no documents falling within paragraphs 4, 5 and 6 of that notice was not correct. I am now informed by her counsel that that incorrect response was made because of a miscommunication between him and his instructing solicitor who says that he misheard what was sought by way of instructions. Considered in the light of that proffered explanation, what happened on that occasion remains far from satisfactory. However, I do not consider that it is necessary to take the matter any further. The evidence remains that the costs have been paid and I have again been assured by Mr Carroll of counsel that his instructing solicitor confirms that there have been costs and disbursements incurred in the sum of $165,000 or thereabouts and that all of those costs and disbursements have been paid by Carolyn Telfer.

9. In these circumstances I am satisfied that there was no misapprehension of the true facts in dealing with the earlier application for a stay and that there has not been any material change in the circumstances which obtained when I made the orders of 30 September 2013.

10. For these reasons I dismiss the application made for an amendment of the orders made on 30 September 2013. I order Neil Telfer to pay Carolyn Telfer's costs of that application.

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