Solicitors:
Fox & Staniland Lawyers (Plaintiff)
Whitefield Solicitors (Defendant)
File Number(s): 2017/266467
Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal
Jurisdiction: Guardianship Division
Date of Decision: 25 September 2017
Before: S M Roberts, Senior Member; E Safro, Senior Member; D R Sword, General Member
File Number(s): NCAT 201700196931
[2]
JUDGMENT
HIS HONOUR: On 22 August 2017, S M Roberts, E Safro and D R Sword, three members of the New South Wales Civil and Administrative Tribunal ("the Tribunal"), determined an application with respect to a review of an enduring power of attorney and a guardianship application by making the following directions:
001: Review of an Enduring Power of Attorney
1. The hearing is adjourned to 14 September 2017 at 2.00pm part-heard. NCAT Civil Tower, Level 17, Room 17.3, 66 Goulburn Street, SYDNEY NSW 2000.
2. The Tribunal makes the following directions:
Mrs Gaetana Gaetani, in her capacity as:
(a) a director of Breeza & Associates Pty Ltd;
(b) a director of Enrico Nitti Holdings Australia Pty Ltd; and
(c) a director of Orberg Holdings Pty Ltd;
is to facilitate the provision by 5 September 2017 to the Tribunal (and serve on the other parties) financial statements (including bank statements) for the period 1 July 2012 to the present of Breeza & Associates Pty Ltd; Enrico Nitti Holdings Australia Pty Ltd and Orberg Holdings Pty Ltd.
3. The Tribunal makes the following directions:
(a) Pursuant to subsections 46(1)(a) and 46(2)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), the Tribunal requests the attendance of Mr Muratore Orazio (in his capacity as director of Leichhardt Property Developments Pty Ltd) at the Tribunal's hearing on 14 September 2017 at 2.00pm at NCAT Civic Tower, Level 17, Room 17.3, 66 Goulburn Street, SYDNEY NSW 2000 to give evidence as to the financial affairs of Leichhardt Property Developments Pty Ltd.
002: Guardianship Application
1. The hearing is adjourned to 16 September 2017 at 2.00pm part-heard. NCAT Civic Tower, Level 17, Room 17.3, 66 Goulburn Street, SYDNEY NSW 2000.
The Tribunal issued reasons for the making of those directions on 25 September 2017. Given the course of the appeal, it is unnecessary to embark upon a summary or description of those reasons.
By an amended summons filed 23 November 2017 ("the amended summons"), an appeal was brought by Mrs Gaetana Gaetani and Mrs Ysabell Schiliro (collectively, "the plaintiffs"), pursuant to Pt 14 of Sch 6 of the Civil and Administrative Tribunal Act 2013 (NSW), against Ms Barbara Schiliro ("the defendant"). The following orders were sought:
1. An order pursuant to Pt 14 of Sch 6 of the Civil and Administrative Tribunal Act 2013 (NSW), to the extent necessary, granting leave to appeal from the whole of the decision of the NSW Civil and Administrative Tribunal made on 22 August 2017 ("the decision").
2. An order setting aside the decision.
3. An order pursuant to s 69 of the Supreme Court Act 1970 (NSW) quashing the decision on the basis of jurisdictional error.
4. Such further or other order as the Court thinks fit.
5. Costs.
The Court received written submissions by the plaintiffs and the defendant filed 7 March 2018 and 8 March 2018, respectively.
During the course of the hearing of the appeal on 9 March 2018, an issue was raised as to whether the directions issued by the Tribunal imposed a legal obligation. Both parties conceded (in one way or another) that they did not. In the result, the plaintiffs sought leave to further amend their amended summons in order to seek a declaration to the effect that they had no such obligation.
The Court intimated that, based on the submissions of the parties, it was prepared to grant the amendment and to make the foreshadowed orders. This step ultimately resulted in consent orders being made in the following form:
1. The Court grants leave to the plaintiffs to amend the Amended Summons in the form annexed hereto marked "A". The plaintiffs shall file the further amended summons.
2. The Court declares that on the true construction of paragraphs 2 and 3 where they twice appear on pages 10 - 11 of the Court Book that no legal obligation thereby exists on the parties nominated therein to do anything stated in those paragraphs.
3. The Court notes that the declaration in paragraph 2 does not affect or limit the first plaintiff's obligations as attorney for her father.
4. Costs reserved.
5. The Court adjourns the matter for mention to facilitate such application the parties may make in relation to the further conduct of the proceedings in the Civil & Administrative Tribunal on Tuesday, 24 April 2018 at 9.30am.
6. Further amended summons otherwise dismissed.
(It should be noted that the date in order 5 was vacated, following email correspondence with the parties with respect to the Court's criminal listings on that same date, and re-listed on 17 May 2018 at 9.30am).
Upon the matter bring returned on 17 May 2018, two outstanding issues remained as follows:
1. whether the proceedings before the Court should be determined conclusively by the making of consent orders, subject only to the question of costs; or
2. whether the proceedings should proceed in the Equity Division of the Supreme Court, namely, the Protective List of Lindsay J (again, with the question of costs requiring resolution).
To facilitate the disposition of those issues a procedure was adopted whereby the plaintiff would produce a draft notice of motion ("the draft motion"). That step was taken with the draft motion (not being formally before the Court) seeking, inter alia, leave to serve a further amended summons, foreshadowing the orders which would be sought in the Equity Division of the Court and staying the extant proceedings before the Tribunal.
No further submissions were received, save for a submission from the defendant opposing time to file the draft motion in apparent misunderstanding of the procedure adopted.
Having reviewed the material, I consider that the appropriate course is to treat the existing proceedings constituting an appeal from the Tribunal as spent, save as to the issues of cost, so as to permit the Tribunal to determine the extant proceedings before it (noting there is no issue as to its jurisdiction to do so).
No ruling is made with respect to the draft motion which is strictly not before the Court other than as an indication as to a foreshadowed course. Nothing in this ruling is intended to be conclusive of any fresh steps which may be taken by the plaintiffs in this Court.
As to the question of costs, and as per the agreement of the parties, the question will be determined on the papers, save as to any application for an oral hearing, with each party providing written submissions with respect to the same. As the debate has gravitated towards the defendant seeking costs the following directions are predicated on that basis. No other orders would seem to be necessary in the disposition of the appeal itself having regard to order 6 as extracted in [6] above. If either party, however, considers that a further step is necessary in that respect they should indicate the same in their written submissions.
[3]
Directions
The Court makes the following directions:
1. The defendant shall file and serve written submissions with respect to costs within 14 days of the publication of this decision; and
2. The plaintiffs shall file and serve written submissions with respect to the same within 14 days of receipt of the submissions referred to in (1).
3. The matter may be listed for further oral submissions upon application by either party in their written submissions filed in accordance with these directions or if that course is considered appropriate by the Court.
4. In the absence of an application pursuant to (3), the issue of costs will be determined upon the written submissions and without further oral submissions before the Court.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 17 August 2018