Wintour v Bonney

[2000] NSWSC 381

CITATION:	Wintour v Bonney [2000] NSWSC 381
CURRENT JURISDICTION:	Equity
FILE NUMBER(S):	SC 4232/99
HEARING DATE(S):	8 and 9 May 2000
JUDGMENT DATE:	9 May 2000
PARTIES :	John Neville Wintour (P) Herbert Bonney (D)
JUDGMENT OF:	Hamilton J

COUNSEL :	J R Wilson (P) P R McGuire (D)
SOLICITORS:	L Rundle & Co (P) Fischer Finn Cruickshank (D)
CATCHWORDS:	PROCEDURE [115] - Supreme Court procedure - Practice under Supreme Court Rules - Masters - Trial of proceedings referred to a Master by order of a Judge - Circumstances in which reference should be made.
CASES CITED:	Grace v Franke; Estate Late M L Thomson [1999] NSWSC 1261
DECISION:	Trial of proceedings for removal of trustee referred to Master.

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

TUESDAY, 9 MAY 2000

4232/99 JOHN NEVILLE WINTOUR v HERBERT BONNEY

JUDGMENT

HIS HONOUR:

1    In this matter there is before me an application to vacate hearing dates of the proceedings before Master Macready this Thursday and Friday, 11 and 12 May 2000. There are other matters that also need to be dealt with, but I shall deal with the matter of the fixture first.

2    Mr John Wilson, of counsel for the plaintiff, strongly resists the application to vacate the dates. I do not need to go into detail of what has occurred and not occurred - mostly not occurred - but the conduct of the matter in the defendant's camp is far from satisfactory and the case made out by Mr Wilson for retention of the date is strong. There is a problem that the defendant has about the loss of counsel and of the Sydney solicitor who was acting, although that solicitor's Brisbane principal continues in the matter and is in Court today. Mr McGuire of counsel, who appears for the defendant on this application, is not briefed on the hearing, and is unable to accept a brief on the hearing by reason of other commitments. Correspondence from Miss Suttor, the plaintiff's solicitor, to the defendant's solicitors as to various matters that needed to be dealt with has essentially gone unanswered over a period, and, as Mr Wilson has said, nothing has been laid before the Court as to the precise state of preparation of the matter, in the sense of what has been done and not been done since the matter was fixed for hearing. Those are the sorts of things which lead me to say that the situation really is very unsatisfactory.

3    However, if this afternoon, Tuesday afternoon, the hearing is vacated the learned Master is able to fix other matters which will at least usefully occupy the Court’s time on Thursday and Friday. I have not been able to enter into a thorough enough investigation of the matter to see if it is one of those unusual cases where the conduct in the defendant's camp has been so derelict that a hearing, for which it would seem there is no sufficient preparation, ought be forced on the defendant, but from what I have heard so far I fear that if I refuse the application, confirm the fixture before the Master and send the matter for trial on Thursday, there is a very high probability that one way or another there will be disaster on Thursday. The plaintiff may well continue to be disadvantaged by the loss of the fixture, and further moneys may be thrown away, including the cost of the plaintiff himself travelling from Queensland. Court time will be lost as well. In all the circumstances, with some regret, I feel that the correct decision is that I should vacate the fixture before the Master on Thursday and Friday of this week.

4    On the material that is laid before me, there is no sufficient explanation for the course of events which has occurred to alter my initial inclination that the correct order as to costs consequential upon the vacation of the fixture is that the defendant ought be ordered to pay the costs of the appearances before me yesterday and today and the costs thrown away by the vacation of the fixture.

5    One other matter about which there has been some controversy is that the matter has been fixed for trial before the Master without a formal order of reference to a Master, albeit it is a case which could be tried by a Master only upon reference by a Judge. The proceedings are in fact for the removal of a trustee. Mr McGuire has put to me that, over his client's resistance, I ought not make such an order. It is put, in short, that because it is a matter not usually heard by a Master, or because it is a matter of seriousness and complexity, it ought be heard by a Judge rather than a Master.

6    On my comparatively superficial examination of the matter, I am not able to determine whether it can rightly be said that the defendant ever consented to it being listed before a Master. There is a note that the defendant, as well as the plaintiff, did consent. Certainly, before the Registrar and on other occasions that it has been before the Court, no protest has been raised until recently at this course being followed, and that at times when it was plain that it was already listed before a Master for trial. Furthermore, it appears to me that it will be heard more quickly before a Master, even after the vacation of the present fixture, than it will be able to be heard upon reference to an Expedition Judge. And the plaintiff's loss of the opportunity to have the matter heard this Thursday and Friday has been caused, as I have already made plain, by conduct in the defendant's camp.

7    I have already made it plain in Grace v Franke; Estate Late M L Thomson [1999] NSWSC 1261 that I see no difficulty, in appropriate cases, with trials which are comparatively short and of no great complexity of fact or law being referred to the Masters in this Division, albeit they are not matters which are usually heard by Masters. I agree with Mr McGuire that in a Court of Equity the removal of a trustee is a matter of some seriousness, and not to be treated lightly, but, from what I gather, this matter cannot fairly be said, when viewed against the generality of matters in this Division of this Court, to be a matter of any great complexity of law or fact. In short, I propose to exercise my discretion to order that the trial of this matter be referred to a Master. In my view, the best course I can follow is to place the matter in the Duty Master's list this Thursday with a view to it being refixed for trial.

8    While I ought not and do not in any way seek to constrain the discretion of any Master that the trial comes before, if there is any further application for an adjournment of the trial, the circumstances in which this fixture has been vacated by me will, I have no doubt, be taken into account by that Master when exercising that discretion. If it is desired that the defendant's case be presented and heard in an orderly manner it behoves the defendant now to take urgently every necessary step to prepare the matter for an early trial.

…oOo…

9    Mr Wilson has asked me to make an order or direction making it plain that the defendant, in meeting the costs order that I propose to make, is not entitled to seek an indemnity out of the assets of the estate in respect of that order. I am not prepared to make that order on the material before me and without further opportunity to the defendant to explain the circumstances in which the situation has come about. The simple order for costs in the plaintiff's favour is, in my view, in a different category and ought now be made on the material before me. However, I reserve to the plaintiff leave to apply to the court in due course for an order to the effect that Mr Wilson has sought.

…oOo…

Last Modified: 09/25/2000