Telfer v Telfer (No 3)

[2014] NSWCA 251

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Telfer v Telfer (No 3) [2014] NSWCA 251

Hearing dates:

14, 15 May 2014, 8 July 2014

Decision date:

31 July 2014

Before:

Macfarlan JA; Gleeson JA; Sackville AJA

Decision:

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

2. Allow the appeal.

3. 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.

4. 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.

5. 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.

6. 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).

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

[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 - final orders following joinder of the administrator of the estate

Cases Cited:

Telfer v Telfer [2014] NSWCA 186
Telfer v Telfer (No 2) [2014] NSWCA 250

Category:

Consequential orders

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 H Murr SC (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 [2013] NSWSC 412 (24 April 2013)
Neil Ronald Telfer as Executor for the Estate of the late Lyall Telfer v Carolyn Telfer (No 2) [2013] NSWSC 823 (21 June 2013)

Date of Decision:

2013-06-14 00:00:00

Before:

Slattery J

File Number(s):

2011/283114

Judgment

1. THE COURT: In the Principal Judgment delivered on 13 June 2014, the Court indicated the orders it proposed to make, subject to the applicant taking steps to join the administrator of the estate as a party to the proceedings: Telfer v Telfer [2014] NSWCA 186 at [111]-[112].

1. Orders have been made in a judgment of Sackville AJA delivered today for the joinder of the administrator: Telfer v Telfer (No 2) [2014] NSWCA 250.

1. In order to dispose of the appeal, the Court makes the following orders:

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).

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