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…