French v Bremner [2020] NSWCA 211 | Case summary

French v Bremner [2020] NSWCA 211 | Case summary | Zoe

Judgment

BASTEN JA: Over the years prior to 2014 the appellant, Andrew Boyd French, and the respondent, Christopher Bremner, were engaged in commercial activities which resulted in the purchase of a number of rural properties in Victoria and one in New South Wales. Proceedings commenced against Mr French by Provident Capital Ltd (Receivers and managers appointed) (In liq) in 2014 were resolved. However, a cross-claim brought by Mr French joined Dr Bremner in the proceedings. Dr Bremner then filed his own cross-claim against Mr French and against Mr French's de facto partner, Gabrielle June Bakey. (One of the Victorian properties was registered in Ms Bakey's name.)
Following a trial of the cross-claims in the Equity Division, Parker J dismissed all of Mr French's claims and Dr Bremner's cross-claims with respect to the properties, including the cross-claim against Ms Bakey. Otherwise, Dr Bremner was successful in obtaining a judgment for repayment of a loan in an amount of $3.15 million, together with interest. Orders were made for the sale of the properties held in joint names.
On 15 November 2019 Mr French filed a notice of appeal, naming Dr Bremner as the respondent. Ms Bakey was not party to the appeal. On 29 November 2019 Dr Bremner filed a notice of cross-appeal naming both Mr French and Ms Bakey as cross-respondents. The cross-appeal sought orders that each of the properties held in joint names in Victoria, together with the property in the name of Ms Bakey alone, were held on trust for Dr Bremner.
The interlocutory steps in this Court have not proceeded smoothly. The appeal and cross-appeal were originally fixed for hearing in July 2020. On 24 April 2020 the hearing date was vacated on Mr French's motion. [1] At that stage, Mr French was seeking removal of the proceedings into the High Court. Further, he sought the fixing of a new hearing date for 10 February 2021, in the expectation that the courts would be open by then so that he could present his case in person. The matter was returned to the Registrar's list and, on 17 August 2020, the hearing of the appeal and cross-appeal were fixed for 3 and 4 December 2020.
On 4 August 2020 Mr French filed a notice of motion in the cross-appeal seeking an order that the cross-appeal be dismissed for want of due despatch pursuant to Uniform Civil Procedure Rules 2005 (NSW), r 12.7(1) (UCPR). A second order sought that "the reply and defence to the notice of appeal" be struck out for want of due despatch. That order did not relate to the cross-appeal, but in any event appeal proceedings do not involve those forms of pleading and no such documents had been filed. Order 2 cannot be made.
On the same date, 4 August 2020, Ms Bakey filed a notice of motion seeking an order that the cross-appeal be dismissed for want of due despatch, or, that it be dismissed as frivolous and an abuse of process pursuant to UCPR r 13.4(1). It is necessary to deal with the two motions separately.

[4]

Mr French's motion

In support of his motion, Mr French filed an affidavit dated 4 August 2020, setting out a litany of complaints about Dr Bremner's conduct. Several of the complaints concerned other proceedings. Some related to steps taken or not taken in those proceedings; some, such as the complaint that Dr Bremner did not give evidence in the trial the subject of this appeal, were based on procedural misconceptions. No purpose is served by setting out the detail of the complaints: their relevance is tangential. The best they can do is to support an inference that the relationship between Dr Bremner and his solicitors in the present proceeding has, on two occasions, been open to criticism. Thus, although the current solicitors for Dr Bremner, who had acted for him in the Court below, filed and served a notice of intention to appeal on 11 September 2019, on 27 November 2019 they denied that they had instructions to accept service of Mr French's notice of appeal. Two days later they advised that they had such instructions and served a notice of cross-appeal.
Secondly, on 27 March 2020 Dr Bremner's solicitors proposed directions by which he would file and serve his written submissions by 20 May and a further directions hearing be fixed for 27 May 2020. The written submissions were not filed. On 26 May, the day before the proposed directions hearing, Dr Bremner's solicitors filed a notice of ceasing to act. The notice stated that a notice of intention to cease to act had been filed on 19 May 2020 and served on Dr Bremner on the same date.
On 1 July, the Registrar ordered that Dr Bremner file submissions by 29 July 2020 and fixed a further directions hearing for 5 August 2020. On 28 July the solicitors advised that they were re-engaged by Dr Bremner. They sought a further month to file and serve submissions, namely by 28 August 2020. Although the extension was opposed by Mr French, on 5 August 2020 the Registrar varied the directions to permit Dr Bremner to file and serve his submissions by 28 August 2020. The hearing dates were fixed following the directions hearing on 5 August.
Pursuant to s 56 of the Civil Procedure Act 2005 (NSW) each party to civil proceedings is under a duty to assist the court in facilitating the just, quick and cheap resolution of the real issues in the proceedings. Legal representatives are obliged not to cause a party to be put in breach of that duty. The chronology set out above raises a doubt as to whether Dr Bremner is in breach of his obligations under s 56. However, it is not necessary to make findings in that regard and none is made. The failure of Dr Bremner to comply with directions is not sufficient to warrant an order summarily dismissing his cross-appeal. Whatever failures have arisen prior to the lodging of the notice of cross-appeal, allowance must be made for the fact that he lives in London, and is, presumably, unable to come to Australia, as he had proposed in an email to the Registrar. That said, he remains under an obligation to ensure that instructions are given to legal representatives in Australia in a timely fashion; where, as he also suggested in an email, he was "having issues" with his lawyers, such claims will not readily be accepted as an answer to an apparent breach of the obligations under s 56 of the Civil Procedure Act.
On the other side of the record, it is to be recalled that Mr French, in his notice of motion of 4 May 2020 sought the vacation of the hearing dates fixed for July and the fixing of a fresh date in February 2021. In fact, hearing dates had been obtained before the end of this year and therefore more expeditiously than Mr French himself had sought. It follows that any failures on the part of Dr Bremner have not resulted in the resolution of the proceedings being delayed beyond the date Mr French himself deemed acceptable.
One other matter should be noted. Counsel for Dr Bremner submitted that the application "should not be allowed, or even entertained" because Mr French had failed to comply with the orders made in the Equity Division, and had been refused a stay of the execution of the orders. Mr French, it was submitted, was in contempt of court and therefore "should not be heard on any application for relief beyond an application to set aside or vary" the order in question. Reference was made to Chamberlain Group Pty Ltd v Kids for Life Academy Pty Ltd [2015] NSWCA 241 at [17], which stated that the obligation could not be waived. It was also said in that case that "[o]ne party's acquiescence in another party's failure to comply with court orders, for example by not bringing contempt proceedings, does not excuse the breach": at [16]. However, it is difficult to see why an informal agreement between the parties would not avoid a finding of contempt, though no doubt it would be proper to advise the court of the agreement. Similarly, acquiescence without communication might also be sufficient. There must be a significant proportion of cases subject to appeal where no stay is formally sought. The courts should not force the parties to take formal steps, the outcome of which is not in doubt. Further, it is by no means clear that there is any principle precluding interlocutory steps being taken on an appeal against the order which has not been complied with. (Cases involving the care, custody or welfare of children may well fall within a special category.) The issue appears to have been raised in Chamberlain because the unsatisfied order required a transfer of property within a specified time period, which had expired. There is no reason to apply any such principle in the present case, involving an appeal from an unpaid money judgment.
However, in an apparent response to that submission, two days before the hearing of the motion, Mr French filed an amended notice seeking a stay of execution of the orders of Parker J. There is no basis for thinking that a stay is otherwise necessary; Dr Bremner has taken no steps to enforce the judgment whilst the appeals have been on foot, nor indicated any intention to do so prior to the hearing in three months' time. In those circumstances it is not necessary to consider a stay.
To dismiss the cross-appeal for want of due despatch would be to overturn the directions of the Registrar varying the timetable for Dr Bremner's submissions: that course is not warranted. It is true that Dr Bremner has been accorded significant indulgences, but the delays have not been extreme. Perhaps partly in response to the threat of dismissal, he has complied with the latest direction. Accordingly, Mr French's amended motion of 4 August 2020 should be dismissed. Costs of the motion should be costs in the cross-appeal.

[5]

Ms Bakey's motion

Ms Bakey's motion to dismiss the cross-appeal against her turned on two propositions. The first was procedural: because she was not an appellant, Dr Bremner was not entitled to proceed against her by way of cross-appeal. In short, it would have been necessary for him to commence proceedings by notice of appeal, something he had not done.
The substantive basis of the motion was that the cross-appeal lacked merit. That claim turned in part upon the fact that Dr Bremner had not given evidence in support of his claim at trial. His answer to the motion was reliance upon a factual finding of the primary judge that the amount payable on settlement had been provided by Dr Bremner, together with the presumption of resulting trust absent a finding that the payment was intended as a "gift" to Ms Bakey. The judge made a finding that it was intended as a gift, based on the evidence of Mr French and Ms Bakey: judgment at [465]. Dr Bremner's case appears to be that the evidence in support of that finding was "merely nebulous".
It may be that Dr Bremner will have difficulty in supporting his cross-claim with respect to Ms Bakey. On the basis of the submissions on the motion, it seems unlikely that the hearing of the appeal will be greatly extended by having to deal with this issue. In any event, there is no sufficient basis to treat the cross-appeal as frivolous, vexatious or brought for an improper purpose.
Finally, Ms Bakey complains of the distress and hardship caused by having her family home the subject of continuing litigation. So much may be accepted; however, by itself it provides no basis for dealing with the cross-appeal separately and before the hearing in December. As she noted in her written submissions, Dr Bremner's cross-claim against her was brought in 2015. Given that her circumstances have been subject to a degree of uncertainty for five years, no material increase in hardship will be suffered by awaiting the hearing date in December.
It may be that the real purpose of her motion filed on 4 August 2020 was the summary disposal of the cross-appeal for want of due despatch. That is not an appropriate course at this late stage in the proceedings. The parties should be focused on preparing and printing appeal books, an exercise which will make few demands on Ms Bakey.
There remains the question of procedural irregularity. It would appear to be largely a technical problem. No notice of motion objecting to the competency of the cross-appeal has been filed. The issues between the parties have been fully articulated in the existing documentation; there is no reason to dismiss the cross-appeal on this basis
Accordingly, Ms Bakey's notice of motion should be dismissed. The costs of the motion should be the costs of the second cross-respondent (Ms Bakey) of the cross-appeal.
The Court makes the following orders: 1. In relation to the motion filed by Mr French on 4 August 2020: 1. Dismiss the motion. 2. Order that the costs of the motion be costs in the cross-appeal. 1. In relation to the motion filed by Ms Bakey on 4 August 2020: 1. Dismiss the motion. 2. Order that the second cross-respondent's costs of the motion be her costs in the cross-appeal.

French v Bremner

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