Thomas v O'Neill
[2013] NSWCA 23
•11 February 2013
Court of Appeal
New South Wales
Case Title: Thomas v O'Neill Medium Neutral Citation: [2013] NSWCA 23 Hearing Date(s): 11 February 2013 Decision Date: 11 February 2013 Before: Allsop P at [1]; [12]
Macfarlan JA at [2]Decision: The Court makes the following orders:
(1) Application for leave to appeal against appointment of the trustees for sale and the application for an extension of time in which to file and serve that application be dismissed with costs.
(2) Exhibit B may be returned to applicant.
[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: APPEAL - application for leave to appeal dismissed - no issue of principle Cases Cited: Ross v Ross [2010] NSWCA 301
Thomas v Stockman [2012] NSWCA 444Category: Procedural and other rulings Parties: Annette Carol Thomas (Applicant)
Michael O'Neill (First Respondent)
Lorraine Elizabeth Thomas (Second Respondent)Representation - Counsel: Counsel:
Self-represented Applicant
D Williams (Respondents)- Solicitors: Solicitors:
Self-represented Applicant
J P O'Neill Solicitors (Respondents)File Number(s): CA 2012/385631 Decision Under Appeal - Court / Tribunal: Supreme Court - Before: Schmidt J - Date of Decision: 21 September 2012 - Citation: Evans v Thomas - Court File Number(s): SC 2011/357637
JUDGMENT
ALLSOP P: I will ask Macfarlan JA to give the first judgment in this matter.
MACFARLAN JA: This is an application by Mrs Annette Thomas for leave to appeal against consent orders made on 4 February 2011 appointing Mr Allan Stockman and Mr Linden Evans as trustees for sale of a property co- owned by the applicant and her sister, Ms Lorraine Thomas, who is the second respondent to the application. The first respondent is Mr Michael O'Neill, a solicitor who was acting for the applicant at the time the consent orders were made.
As the application was not filed until 12 December 2012 it is long out of time and the applicant requires an extension of time in the order of twenty months to enable her to proceed. No adequate explanation for the delay has been given, and for the reasons described below, the applicant has not in any event shown she has any arguable basis for an appeal. An extension should be refused and the application for leave to appeal dismissed.
The circumstances giving rise to the application are described in Thomas v Stockman [2012] NSWCA 444. That description need not be repeated here. The appeal papers do not reveal whether the consent orders of 4 February 2011 were part of a contractual bargain between the applicant and her sister or merely an acceptance by the applicant of orders sought by her sister. As the task of challenging the orders would be considerably higher in the former case, I shall assume in favour of the applicant that the latter was the position (see Ritchie's Uniform Civil Procedure NSW [SCA s 101.10]).
The applicant's undated summary of argument does not disclose any basis for her proposed appeal. It simply refers to her desire to have discovery of documents and to serve subpoenas without identifying what she seeks to achieve by those steps. Her handwritten submission of 25 January 2013 refers to cross-examination of the respondent about an allegedly untrue statement by her that the applicant "would not sell the property", and to evidence concerning a mediation between the parties and an alleged refusal of the respondent to negotiate. These references do not identify any basis on which an appeal might succeed, nor does the suggestion made by the applicant that she wishes to cross-examine the solicitor who was acting for her in February 2011.
The applicant's draft notice of appeal asserts, first, that she did not know that her solicitor had not filed a defence until twelve months after the consent orders were made. However, she has not provided any adequate explanation of the circumstances in which the consent orders were made or for her substantial delay in filing the present application after the date, allegedly twelve months ago, that she first became aware that a defence had not been filed.
Secondly, the applicant refers to proceedings apparently commenced by her against the trustees for sale for misuse of moneys under their control and for breach of trust. Substantiation of such allegations would at best provide a basis for removal of the trustees. It would not provide a ground for appeal against their appointment in February 2011.
Thirdly, the applicant asserts: "ownership of property not verified". No basis is given for any doubt as to the present ownership of the property previously owned by the mother of the applicant and the second respondent and devised by her to them.
The applicant relies also on an affidavit sworn on 6 February 2013. This repeats many of the matters described above and in paragraphs 4 and 5 of the Court's judgment of 12 December 2012. They include contentions that s 66G of the Conveyancing Act is out of date, that the applicant's solicitors failed to carry out her instructions to obtain an order for mediation and that she did not find out that her solicitors had consented to an order for the sale of the property until February 2012. However, I am unable to discern amongst these contentions any arguable basis for a defence to the s 66G application made by the present applicant's sister.
It is possible that Mrs Thomas has a basis for complaint against her solicitor, but in the absence of special circumstances, none of which appear to be present here, a party is bound by the conduct of his or her solicitor and Mrs Thomas has not been able in any event to identify any basis she had for resisting the making of the s 66G order. In this respect, I note that the discretion to refuse a s 66G application is, in any event, very limited (see Ross v Ross [2010] NSWCA 301 at [36]).
Taking all these matters into account, I conclude that an extension of time for filing the application for leave to appeal should be refused and that the application for leave to appeal should be dismissed with costs.
ALLSOP P: I agree. The only matter that I would add is that in the course of the material placed before the Court, Ms Thomas, the applicant, has indicated that in the years in which she has been in possession of the premises now needed by the trustees to obtain a sale, she has expended moneys on the premises. Any claim for those moneys can be the subject of a properly formulated claim against any proceeds.
For the above reasons the orders of the Court are:
1. Application for leave to appeal against the appointment of the trustees for sale and the application for an extension of time in which to file and serve that application be dismissed with costs.
2. Exhibit B may be returned to applicant.
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