[2003] HCA 7
Gooley v Gooley [2020] NSWSC 798
Plaintiff S164/2018 v Minister for Home Affairs (2018) 361 ALR 8
[2018] HCA 51
Re Luck (2003) 203 ALR 1
Source
Original judgment source is linked above.
Catchwords
[2003] HCA 7
Gooley v Gooley [2020] NSWSC 798
Plaintiff S164/2018 v Minister for Home Affairs (2018) 361 ALR 8[2018] HCA 51
Re Luck (2003) 203 ALR 1
Judgment (5 paragraphs)
[1]
BACKGROUND
These reasons for judgment relate to the notice of motion filed by the defendant on 29 July 2020. That notice of motion and these reasons need to be understood in the following context.
The plaintiffs in this proceeding, Aleta Joy Gooley and Melinda Louise Foley, are two of the daughters of Melville Gooley, who died on 23 December 2017. The plaintiffs were named as the executors of a will made by the deceased dated 18 July 2014.
The defendant, Brett Raymond Gooley, is the son of the deceased.
On 9 July 2018, the plaintiffs commenced this proceeding, applying for a grant of probate in solemn form of the deceased's will dated 18 July 2014.
The principal issue in dispute between the plaintiffs and the defendant in the proceeding is whether the deceased had testamentary capacity to make that will and, if not, what is the most recent will made by the deceased at a time when he still had testamentary capacity. The proceeding is part-heard before Sackar J. It is convenient to refer to the proceeding as the Probate Proceeding, as I did in my earlier reasons for judgment published on 25 June 2020: Gooley v Gooley [2020] NSWSC 798 (the First Judgment).
By notice of motion dated 16 March 2020 and filed on 25 March 2020, the defendant sought an order under s 73 of the Probate and Administration Act 1898 (NSW) (PA Act) appointing an administrator pendente lite in respect of all of the assets of the deceased estate (the Estate), and certain ancillary relief. It is convenient to refer to this as the First Application.
The First Application was heard before me on 17 April and 6 May 2020. On 25 June 2020, I delivered reasons for judgment in which I concluded that the assets of the Estate were in jeopardy by reason of certain conduct of the plaintiffs and determined that an administrator pendente lite would be appointed (albeit on terms somewhat different to those that were sought in the defendant's notice of motion) unless the plaintiffs gave certain undertakings to the Court and to the defendant: First Judgment at [127]-[147].
The undertakings to which I referred were set out in the First Judgment at [141], which I reproduce in full below:
"In my opinion, this is a case where it may be possible to alleviate the risk to the Estate without going so far as to appoint an administrator pendente lite if the plaintiffs are willing to offer undertakings to the Court and the defendant to:
(a) serve an affidavit within 14 days of the date of these reasons:
(i) providing a detailed explanation of the transaction pursuant to which the sum of $1,437,000 was transferred by Jamell to the Estate Bank Account on 29 January 2018, including:
(A) whether the transaction was a loan from Jamell to the plaintiff and, if so, the terms of the loan;
(B) if the transaction was not a loan, the nature and terms of the transaction and the clause of the GFT No.4 Deed that conferred power on Jamell to enter into the transaction; and
(C) annexing or exhibiting all documents evidencing the transaction, its nature and terms, including (without limitation) documents evidencing any resolution of Jamell to enter into the transaction;
(ii) disclosing the extent to which the plaintiffs have caused any funds or other assets to be withdrawn from or transferred out of the Estate during the period from 23 December 2017 to the date of the affidavit (excluding transfers out of the Estate Bank Account shown in the statements for that account in evidence on the hearing of the notice of motion, if the funds in that account be funds of the Estate); and
(iii) disclosing all transactions entered into by the plaintiffs purportedly as executors of the Estate during the period since 23 December 2017;
(b) refrain from using funds or assets of the Estate to meet any costs or expenses incurred by the plaintiffs or any other person in or in relation to the Probate Proceedings, the Family Provision Proceedings or any other proceedings in which the Estate is a party or has an interest, save to the extent that any order of the Court authorises such costs to be paid out of the Estate; and
(c) pending determination of the Probate Proceeding, refrain from taking any steps to bind the Estate to any obligation or liability, except with written approval of the defendant or by an order of the Court permitting them to do so."
These reasons assume familiarity with the First Judgment. Terms used in the First Judgment have the same meaning in these reasons.
On 29 June 2020, the plaintiffs' solicitor sent an email to my Associate, copied to the defendant's solicitor, advising that the plaintiffs would give the undertakings referred to in the First Judgment at [141] in the form of affidavits to be filed within 14 days (that is, by 9 July 2020).
On 8 July 2020, the defendant's solicitor sent to my Associate short minutes of order signed by both parties. The email, which was copied to the plaintiffs' solicitor, stated that the short minutes of order were "agreed between the parties" and requested that the orders be made in chambers.
The short minutes noted undertakings given by the plaintiffs to the Court and the defendant in terms that reflected the undertakings set out in the First Judgment at [141], save in one respect that has now become important. Paragraph 1(a)(ii) of the short minutes included an undertaking by the plaintiffs to serve an affidavit within 14 days of the First Judgment:
"providing a detailed explanation of the transaction pursuant to which the sum of $1,417,552.03 was transferred by Motasea Pty Ltd to Jamell Publications Pty Ltd on 3 July 2014, including:
1. whether the transaction was a loan from Motasea to Jamell and, if so, the terms of the loan;
2. if the transaction was not a loan, the nature and terms of the transaction; and
3. annexing or exhibiting all documents evidencing the transaction, its nature and terms, including (without limitation) documents evidencing any resolution of Motasea to enter into the transaction"
The undertakings set out in [141] of the First Judgment did not include an undertaking in the terms of paragraph 1(a)(ii) of the short minutes.
The short minutes of order prepared by the parties set out the following orders:
"2. On the basis that the undertakings, referred to in paragraph 1 above, have been given by the plaintiffs to the Court and to the defendant:
(a) paragraphs 1 to 7 of the defendant's Notice of Motion dated 16 March 2020 are dismissed; and
(b) the Order 1 of the Orders made by her Honour Chief Justice Ward on 24 March 2020 is vacated.
3. Costs reserved."
By way of explanation, Order 1 made by Ward CJ in Eq on 24 March 2020 was an interim order that was overtaken by paragraph 1(b) of the undertakings in the short minutes of order signed by the parties and dated 8 July 2020.
The orders in the short minutes were made in chambers on 8 July 2020.
On 9 July 2020, the plaintiffs served the following affidavits:
1. An affidavit of the second plaintiff, Melinda Louise Foley, affirmed on 8 July 2020. Ms Foley deposed to certain matters concerning a transfer of approximately $1,437,000 from Jamell as trustee of GFT No. 4 to the Estate Bank Account on 29 January 2018. Ms Foley gave evidence concerning the moneys withdrawn or transferred from the Estate during the period since the death of the deceased and the transactions entered into by the plaintiffs purportedly as executors of the Estate. Ms Foley also gave undertakings in the terms of [141(b)] and [141(c)] of the First Judgment and paragraphs 1(b) and 1(c) of the undertakings noted in the orders made on 8 July 2020.
2. Affidavit of the first plaintiff, Aleta Gooley, affirmed on 9 July 2020. Ms Gooley also deposed to certain matters concerning the transfer on 29 January 2018 and gave evidence concerning moneys withdrawn from the Estate and transactions entered into by the plaintiffs purportedly as executors . Ms Gooley also then gave undertakings in the terms of [141(b)] and [141(c)] of the First Judgment and paragraphs 1(b) and 1(c) of the undertakings noted in the orders made on 8 July 2020.
3. An affidavit of the deceased's former accountant, Mr John Colley, affirmed on 8 July 2020. Mr Colley deposed that he had worked on the deceased's affairs for many years, including during the period from about 2000 until the death of the deceased in December 2017. Mr Colley gave evidence of certain matters concerning the transfer on 29 January 2018.
None of those three affidavits include any evidence relating to the transaction pursuant to which the sum of $1,417,552 was transferred by Motasea to Jamell on 3 July 2014, being the subject of the undertaking noted in paragraph 1(a)(ii) of the orders signed by the parties and made by the Court on 8 July 2020.
On 14 July 2020, the defendant's solicitor wrote the plaintiffs' solicitor in the following terms:
"We refer to the affidavits of Aleta Joy Gooley, Melinda Louise Foley, and John Colley, served on Thursday, 9 July 2020.
Further to the judgment of her Honour Justice Williams of 25 June 2020 and the orders made by her Honour, agreed to between the parties on 8 July 2020, we note that your clients have failed to fully comply with the undertakings noted in Order 1 of those orders, in that they have not:
1. provided any detail of the terms of the alleged loan agreement between Jamell Publications Pty Ltd, as trustee for the Gooley Family Trust No. 4, and the Estate of the late Melville William Gooley, as required in paragraph 141(a)(i)(a) of her Honour's judgment; and
2. addressed the ultimate source of the funds in question, namely by addressing the issue of transfer of funds from Motasea Pty Ltd, of which your clients are also the directors, to Jamell Publications Pty Ltd, as noted in Order 1(a)(ii) of her Honour's orders and which was addressed before her Honour at the hearing of the Notice of Motion.
In the circumstances, could you please ensure that your clients prepare supplementary affidavits to address those outstanding issues. Could you please let us know by no later than 5 pm on Wednesday, 15 July 2020, whether they agree to do so and, if so, by when they intend to serve those supplementary affidavits. If they do not intend to do so, or if we do not hear from you by Wednesday, 15 July 2020, we will seek our client's instructions which may include to write to her Honour's Associate requesting that her Honour relist the matter, so that those outstanding issues can be addressed before her Honour."
On 15 July 2020, the plaintiffs' solicitor replied in the following terms:
"The plaintiffs have complied with their respective undertakings.
Paragraph 141 of Williams J's judgment [the judgment] confines the undertaking, which the plaintiffs' have complied with.
We note the following:
1. Mr Colley's affidavit, affirmed on 8 July 2020, makes plain that there are no loan agreements;
2. Ms Foley's affidavit, sworn 7 July 2020, supports this position at paragraph 9:
Paragraph [142] of the judgment makes plain that the evidence provided in accordance with the undertaking was to be transparent, but was not expected to reproduce that, which had been the subject of prior evidence.
As regards the second issue raised in your correspondence, this is not obligation arising from the judgment. See paragraphs [141]-[142].
The plaintiffs have provided appropriate undertakings in their respective affidavits."
The defendant's solicitors replied by email sent on the evening of 15 July 2020 in the following terms:
"In your letter sent by email at about 2.13pm this afternoon, you appear to have ignored the extent of the undertakings noted in the orders made, by consent, and dated 8 July 2020. Significantly, you appear to have ignored the undertaking proffered by your clients to the Court and our client, noted at 1(a)(ii) of the orders, relating to the transfer by Motasea Pty Ltd on 3 July 2014 and, despite that undertaking, the affidavits served on 9 July 2020 do not provide a detailed explanation of that transaction, in breach of the undertakings actually proffered and noted by the Court.
We note that in the last paragraph of your letter you assert that "the plaintiffs have complied with their undertakings" but that is plainly not correct, as shown by a comparison between the undertakings recorded in the orders of 8 July 2020, where the extent of the undertakings actually proffered is recorded, and the content of the various affidavits. Further, you have not sort to provide any explanation for that obvious discrepancy, other than to say that that obligation does not arise "from the judgment. Indeed, the undertakings proffered by your clients do not spring from the reasons for judgment but, instead, from them being proffered by you clients, as recorded in the orders."
[2]
DEFENDANT'S NOTICE OF MOTION AND EVIDENCE
On 29 July 2020, the defendant filed the notice of the motion that is the subject of these reasons for judgment. The notice of motion seeks:
1. an order discharging all of the undertakings given by the plaintiffs on 8 July 2020;
2. an order pursuant to PA Act s 73 appointing an administrator pendente lite on the terms set out in orders 3 to 5 of the notice of motion;
3. orders restraining the plaintiffs from using any funds or assets of the Estate to meet any costs or expenses incurred by them or anyone else in the Probate Proceeding, the Family Provision Proceedings and any other proceedings in which the Estate may be a party or have an interest;
4. orders restraining the plaintiffs from taking any steps to bind the Estate to any obligation or liability, except with the written approval of the defendant or by an order of the Court allowing them to do so;
5. an order requiring the plaintiffs to file and serve an affidavit setting out the same information as was required by the plaintiffs' undertaking noted in in paragraph 1(a)(ii) of the orders made on 8 July 2020; and
6. an order for the plaintiffs to pay the defendant's costs of the notice of motion.
The notice of motion was heard on 4 August 2020. Ms Jonker of counsel appeared for the defendant, the moving party. Mr Romaniuk of senior counsel appeared for the plaintiffs.
The defendant read an affidavit of his solicitor, Mr Frawley, sworn on 24 July 2020, which exhibited the short minutes of order dated 8 July 2020, the affidavits served by the plaintiffs on 8 and 9 July 2020 to which I have referred above (together with the exhibits to those affidavits) and the correspondence between the parties solicitors on 14 and 15 July 2020 to which I have also referred above. The defendant also read his affidavit sworn on 4 February 2019 and tendered an affidavit of the plaintiffs sworn on 5 November 2018, which were relevant to identifying the assets of the Estate for the purpose of formulating the terms of any order made under PA Act s 73.
The plaintiffs read the affidavits of Ms Foley, Ms Gooley and Mr Colley referred to in [17] above. In addition, the plaintiffs relied on an affidavit sworn by their solicitor, Mr Prats, on 3 August 2020.
Ms Prats deposed that, on 7 July 2020, she received a letter from the defendant's solicitors in the following terms:
"In anticipation of your client supplying the undertakings required by her Honour in paragraph 141 of her Honour's judgment and serving an affidavit properly addressing the source of the funds used by your clients, we have prepared the attached draft short minutes of order for your review."
Ms Prats deposed that she understood from the letter that the short minutes prepared by the defendant accorded with [141] of the First Judgment. Both Ms Prats and junior counsel for the defendant "briefly" reviewed the letter and the proposed short minutes, without reviewing the First Judgment, and thought that the short minutes did indeed reflect the First Judgment. Ms Prats signed the short minutes on behalf of the plaintiffs without realising that the defendant had inserted paragraph 1(a)(ii) into the short minutes of order.
[3]
CONSIDERATION AND DETERMINATION
The defendant's notice of motion is based solely on the plaintiffs' failure to comply with the undertaking noted in paragraph 1(a)(ii) of the orders made on 8 July 2020. The defendant noted that he does not accept that the plaintiffs' affidavits referred to in [17] above comply with paragraph 1(a)(i) of those orders, but he does not make any application for relief based on that alleged non-compliance. I infer from the correspondence referred to in [20] above that the plaintiffs dispute the allegation of non-compliance with paragraph 1(a)(i). It was not necessary to hear from the parties on that issue in light of the position taken by the defendant. The defendant has not taken any step to charge the plaintiffs with contempt of Court based on the alleged non-compliance with the undertakings.
Paragraph 1(a)(ii) of the undertakings noted in the orders made on 8 July 2020 went beyond the terms of the undertakings referred to in [141] of the First Judgment.
Contrary to the defendant's submissions, the First Judgment did not require the plaintiffs to provide the undertaking in paragraph 1(a)(ii) in order to provide transparency about past transactions so as to facilitate the efficient conduct of any costs dispute or accounting process at the conclusion of the Probate Proceeding: see First Judgment at [141]-[142].
The defendant submitted that the evidence required by the undertaking in paragraph 1(a)(ii) of the short minutes is necessary to provide that transparency because, without that evidence, "it remains unclear" whether the funds in Jamell's hands (that is the sum of $1,437,000 held by Jamell immediately before it was transferred into the Estate Bank Account on 29 January 2018) "were in fact impressed with a trust in favour of Motasea" such that (in the defendant's submission) they are Estate funds.
As referred to in the First Judgment at [63], it was common ground between the parties that the source of the $1,437,000 paid by Jamell into the Estate Bank Account was an amount of approximately $1,417,552 that Motasea had paid to Jamell in July 2014, together with some interest earned on that amount. As at July 2014, the deceased was the sole director of Motasea.
There was no evidence at the hearing of the First Application that Jamell had any business, other than as trustee of GFT No.4: see First Judgment at [73]. The evidence suggested that the $1,417,552 had been held in Jamell's bank accounts since the transfer from Motasea in July 2014.
At the hearing of the First Application, the plaintiffs submitted that these matters supported a finding that the payment of $1,417,552 by Motasea to Jamell in July 2014 was a disposition to GFT No. 4. I note that Mr Colley's affidavit affirmed on 8 July 2020 confirms that:
"… Jamell holds no Assets in its own right, it is simply the trustee of the GFT#4."
The only basis on which the defendant submitted at the hearing of the First Application that the payment of $1,417,552 from Motasea to Jamell in July 2014 had any character other than as a disposition from Motasea to Jamell as trustee for GFT No. 4 was that the second plaintiff had allegedly misappropriated the money from Motasea and caused it be transferred to Jamell. That submission was rejected for the reasons set out in the First Judgment at [65]-[68].
The only alternative submission made by the defendant at the hearing of the First Application was based on the premise that the $1,417,552 was paid by Motasea to Jamell in July 2014 in its capacity as trustee of GFT No. 4 to be held on the terms of that trust. That alternative submission was also rejected, but not on grounds that impugned that premise: see First Judgment at [69]-[72].
In now submitting that the First Judgment required the undertaking noted in paragraph 1(a)(ii) of the orders made on 8 July 2020 in order to provide the transparency referred to in [142] of the First Judgment, the defendant ignores or seeks to undermine the rejection of the misappropriation allegation in the First Judgment. The need for transparency identified in the First Judgment arose from the inconsistencies within the plaintiffs' evidence and submissions concerning the character of the later payment of approximately $1,437,000 made by Jamell as trustee of GFT No. 4 to the Estate Bank Account on 29 January 2018: see First Judgment at [75]-[83] and [139]-[142].
For those reasons, I reject the defendant's submission that the First Judgment required the plaintiffs to give an undertaking in the terms noted in paragraph 1(a)(ii) of the orders made on 8 July 2020. That undertaking was presented to the Court as having been agreed by the parties. Consistently with the First Judgment, the Court would have made the orders in paragraphs 2 and 3 of the short minutes signed by the parties on 8 July 2020 if the undertakings given by the plaintiffs had been limited to the undertakings in paragraphs 1(a)(i), (iii) and (iv), 1(b) and 1(c) of the short minutes.
It is clear from Ms Prats' evidence that the undertaking was given as the result of a mistake made by the plaintiffs' legal representatives. It is regrettable that the mistake occurred. It is equally regrettable that the defendant's solicitor did not expressly disclose to the plaintiffs' solicitor that he had inserted an additional undertaking in the short minutes enclosed with his letter dated 7 July 2020 that went beyond the undertakings referred to in the First Judgment at [141]. However, the plaintiffs' submissions quite properly did not seek to blame the defendant's solicitor for the mistake.
The plaintiffs' solicitors must have realised their mistake by no later than 15 July 2020: see paragraph [21] above. Regrettably, the plaintiffs made no application to the Court to be released from the undertaking noted in paragraph 1(a)(ii) or to otherwise vary the orders made on 8 July 2020 in order to ameliorate their mistake. Instead, the plaintiffs merely asserted in correspondence that they had no obligation to comply with the undertaking in paragraph 1(a)(ii). The plaintiffs left it to the defendant to approach the Court.
In the plaintiffs written submissions dated 3 August 2020, the plaintiffs submitted that, because the undertaking in paragraph 1(a)(ii) did not derive from the First Judgment, the Court should not treat the their failure to comply with that undertaking as a breach of the undertakings given to the Court. It was submitted that the Court should direct that the plaintiffs are not required to comply with the undertaking in paragraph 1(a)(ii).
That is a strange submission.
At the hearing of 4 August 2020, senior counsel for the plaintiffs confirmed that, in substance, the plaintiffs sought to be released from the undertaking in paragraph 1(a)(ii) with a consequential variation of the orders made on 8 July 2020 under Uniform Civil Procedure Rules 2005 (NSW) (UCPR) r 36.16(3) by making the orders in paragraph 2 on the basis of the plaintiffs undertakings noted in paragraphs 1(a)(i), (iii), (iv), (b) and (c) only.
An order appointing an administrator pendente lite is an interlocutory order because it does not finally determine the rights of the parties in the principal cause in a pending probate or administration proceedings. As referred to in the First Judgment at [110]-[126] and [138], the legal effect of an order under PA Act s 73 is to empower the appointed administrator to get in and manage the assets of the estate, in accordance with the powers conferred on him or her by the terms of the orders that are moulded specifically to the circumstances of the particular case, pending determination of the parties' rights in the principal cause. It was not in dispute that, after an application under PA Act s 73 has been dismissed, it is open to the unsuccessful party to make a further application. The ability to bring such a further application, irrespective of its prospects of success having regard to the outcome of the earlier application, is one of the indicia of an interlocutory order: Bienstein v Bienstein (2003) 195 ALR 225; [2003] HCA 7 at [25]; Re Luck (2003) 203 ALR 1; [2003] HCA 70 at [4]; Plaintiff S164/2018 v Minister for Home Affairs (2018) 361 ALR 8; [2018] HCA 51 at [11] (Edelman J).
It follows that the orders made on 8 July 2020 dismissing the defendant's application for an order appointing an administrator pendente lite on the basis of the plaintiffs' undertakings set out in paragraph 1 of the short minutes of order document signed by the parties were interlocutory orders, and the plaintiffs' undertakings were also interlocutory in nature.
The Court has power to release a party from an undertaking that is interlocutory in nature: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 177-178 (Gibbs CJ, Aickin, Wilson, Brennan JJ).
The Court also has power under UCPR r 36.16(3) to:
"… set aside or vary any judgment or order except so far as it:
(a) determines any claim for relief, or determines any question (whether of fact or law or both) arising on any claim for relief, or
(b) dismisses proceedings, or dismisses proceedings so far as concerns the whole or any part of the claim for relief."
For the reasons explained in [44]-[45] above, the exceptions in sub-paragraphs (a) and (b) of r 36.16(3) do not apply to the orders made on 8 July 2020.
In my opinion, it is appropriate in this instance to exercise the powers referred to above by releasing the plaintiffs from their undertaking noted in paragraph 1(a)(ii) of the orders made on 8 July 2020 and varying those orders pursuant to UCPR r 36.16(3) by substituting the following order for order 2:
"On the basis that the undertakings referred to in paragraphs 1(a)(i), (iii), (iv), (b) and (c) above have been given by the plaintiffs to the Court and to the defendant:
(a) Paragraphs 1 to 7 of the defendant's Notice of Motion dated 16 March 2020 are dismissed; and
(b) Order 1 of the Orders made by her Honour Ward CJ in Eq on 24 March 2020 is vacated."
The undertaking noted in paragraph 1(a)(ii) of the orders made by the Court had been included in the undertakings offered by the plaintiffs due to an error made by the plaintiffs' legal representatives. The plaintiffs themselves played no part in the error. Whilst the defendant cannot be held responsible for the error, it is my view that the conduct of his solicitor in writing to the plaintiffs' solicitors on 7 July 2020 in the terms set out in [26] above and without drawing attention to the additional undertaking that the defendant had included in the short minutes was one of the circumstances that contributed to the error.
In my opinion, it would be unjust for the consequences of the error to be visited on the plaintiffs by requiring them to file the evidence referred to in the mistaken undertaking, in circumstances where no requirement for that evidence was identified in the First Judgment in order to avoid the jeopardy to the Estate that warranted the appointment of an administrator pendente lite unless the plaintiffs gave the undertakings in [141] of the First Judgment.
In circumstances where the plaintiffs are to be released from the undertaking noted in paragraph 1(a)(ii) of the orders made on 8 July 2020, their failure to comply with that undertaking does not warrant the relief sought in the defendant's notice of motion filed on 29 July 2020. That notice of motion is dismissed.
At the conclusion of oral submissions concerning the defendant's notice of motion and the plaintiffs' application to be released from the undertaking in paragraph 1(a)(ii), I heard from both parties as to the costs orders that they submitted should be made if the defendant succeeded in his motion and also in the alternative scenario that the plaintiffs' application succeeded and the defendant's motion was therefore dismissed.
Having considered those submissions, I have decided that the appropriate exercise of the Court's discretion under s 98 of the Civil Procedure Act 2005 (NSW) in this case is to make an order that the plaintiffs and the defendant each pay their own costs of and incidental to the defendant's notice of motion filed on 29 July 2020 and of the hearing on 4 August 2020. This reflects the fact that the motion and the hearing were necessitated by both:
1. the plaintiffs' need to apply to the Court to be released from an undertaking given to the Court by mistake (an application for which the plaintiffs would ordinarily be required to be pay both parties' costs); and
2. the defendant's unsuccessful contention that the mistaken undertaking was required by the First Judgment and unsuccessful further application for the appointment of an administrator pendente lite, for which the defendant as the unsuccessful party would ordinarily pay the plaintiffs' costs.
[4]
ORDERS
For the reasons above, I make the following orders:
1. Order that the plaintiffs be released from the undertaking noted in paragraph 1(a)(ii) of the orders made by the Court on 8 July 2020.
2. Order that the defendant's notice of motion filed on 29 July 2020 is dismissed.
3. Pursuant to r 36.16(3) of the Uniform Civil Procedure Rules 2005 (NSW), vary order 2 made on 8 July 2020 by deleting the words "the undertakings, referred to in paragraph 1 above" and inserting instead the words "the undertakings referred to in paragraphs 1(a)(i), (iii) and (iv), 1(b) and 1(c)", so that the order reads:
"On the basis that the undertakings referred to in paragraphs 1(a)(i), (iii), (iv), (b) and (c) above have been given by the plaintiffs to the Court and to the defendant:
(a) Paragraphs 1 to 7 of the defendant's Notice of Motion dated 16 March 2020 are dismissed; and
(b) Order 1 of the Orders made by her Honour Ward CJ in Eq on 24 March 2020 is vacated."
1. Order that the plaintiffs and the defendant each pay their own costs of the defendant's notice of motion filed on 29 July 2020 and the hearing on 4 August 2020.
[5]
Amendments
05 August 2020 - Corrected typographical errors in catchwords.
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Decision last updated: 05 August 2020