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[2026] NSWSC 95
General information, not legal advice.
Supreme Court of NSW
2026-02-19
Meek J
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Hunt v Archer [2026] NSWSC 95
Hearing dates: 8 October 2025, 24 November 2025, 9 February 2026
Date of orders: 19 February 2026
Decision date: 19 February 2026
Jurisdiction: Equity – Probate and Family Provision List – Family Provision
Before: Meek J
Decision: Order made for joinder of non-party to proceedings
Catchwords: SUCCESSION — Familial disputes — matters involving: an elderly now deceased mother (M); 3 adult children: C (who predeceased M), AH (executor and one third beneficiary of M’s estate, the plaintiff) and AO (one third beneficiary of M’s estate); CA’s sole child G (defendant, executrix and sole beneficiary of C’s estate, and one third beneficiary of M’s estate) and T (applicant) — Debt and Will construction (D&WC) proceeding regarding M’s estate between AH and G — Family provision (FP) proceeding regarding C’s estate between T and G —T seeks joinder to D&WC proceeding on the basis that (inter alia) there is a common monetary fund and findings in the D&WC proceeding will impact allegedly directly his interests in the FP proceeding — Joinder opposed
JOINDER — Parties to proceedings — Joinder sought pursuant to UCPR rr 6.19 and 6.24 — Joinder including those provisions and r 6.27 considered — Held joinder appropriate pursuant to residual discretion under r 6.19
JOINDER — Parties — Joinder pursuant to UCPR r 6.19 (common question and all relief same transaction limbs) — Same transaction limb not satisfied — Joinder pursuant to UCPR r 6.19 (residual discretion) discussed provisions including r 6.27 considered — Residual discretion expressed in unqualified terms — Considerations involve what is most conducive to a just resolution of the disputes between the parties, having regard to the desirability of limiting, so far as practicable, the costs and delay of the litigation — Consideration of matters in favour of and against exercise of discretion for joinder
JOINDER — Parties — Joinder pursuant to UCPR r 6.24 (ought and necessary limbs) — Vexed issue as to whether applicant’s interests are directly affected in the D&WC proceeding — Arguably “yes” but residual discretion under r 6.19 preferred basis for determination
JOINDER — Parties — Joinder pursuant to UCPR r 6.27 — UCPR r 6.27 has not generally been construed as independent or separate stand-alone unconstrained source of power to permit joinder, irrespective of there being some associated statutory provision in particular r 6.24 (or r 6.19) permitting joinder or some other general law requirement — A principal purpose of r 6.27 is facilitative, thus making it clear that non-party may invoke r 6.24 (or r 6.19) to seek joinder
JOINDER — Parties — Joinder — Dispensation, conditions and alternatives — Consideration of power to dispense with requirements of rules and impose conditions on joinder — Consideration of alternatives to joinder — Proposed conditions on joinder rejected
INTERVENTION — Difference between intervention and joinder
Legislation Cited: Civil Procedure Act 2005 (NSW)
Interpretation Act 1987 (NSW)
Limitation Act 1969 (NSW)
NSW Trustee and Guardian Act 2009 (NSW)
Succession Act 2006 (NSW)
Supreme Court Act 1970 (NSW)
Supreme Court Rules 1970 (NSW)
Federal Court Rules 1979 (Cth)
Cases Cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27
AQC Dartbrook Management Pty Ltd v Minister for Planning and Public Spaces [2021] NSWCA 112
Attorney General for New South Wales v Clark; Clark v State of New South Wales [2022] NSWSC 361
Australian Securities and Investments Commission v Somerville [2008] NSWSC 788
Bishop v Bridgeland Securities (1990) 25 FCR 311
Bogan v Estate of Peter John Smedley (Dec'd) [2025] HCA 7; (2025) 422 ALR 94
Boyd v Thorn (2017) 96 NSWLR 390; [2017] NSWCA 210
Burrell Solicitors Pty Limited (In Liquidation) v Reavill Farm Pty Limited (No 2) [2019] NSWSC 67
Burton v Babb [2020] NSWCA 331
Cetojevic v Cetojevic [2006] NSWSC 431
CGU Insurance Ltd v Bazem Pty Ltd [2011] NSWCA 81
China First Pty Ltd v Mount Isa Mines Pty Ltd [2019] 3 Qd R 173; [2018] QCA 350
Coastal Service Centres Pty Ltd v United Petroleum Pty Ltd [2023] NSWSC 326
Daracon Engineering Pty Ltd v Kelsall [2025] NSWCA 189
Davidovic v Vesuvius Australia Pty Ltd (No 3) [2017] NSWSC 76
Dean-Willcocks v Air Transit International Pty Ltd (2002) 55 NSWLR 64; [2002] NSWSC 525
Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95; [2002] HCA 8
Esanda Finance Corporation Ltd v Carnie (1992) 29 NSWLR 382
Filby v TEG Live Pty Ltd [2022] NSWSC 1280
Ghose v Cx Reinsurance Company Ltd and Ors [2010] NSWSC 110
Gurtner v Circuit [1968] 2 QB 587
Hewit v NSW State Coroner [2019] NSWSC 1401
Hughes v Fong [2016] NSWSC 1451
In re Tennant; Mortlock v Hawker & Ors (1942) 65 CLR 473
In the Matter of Raejoe Pty Ltd (Receiver and Manager Appointed) (Administrators Appointed) As Trustee for 'The Coe Family Trust' [2012] NSWSC 1457
John Alexander’s Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1; [2010] HCA 19
John Cooke & Co Pty Ltd v Commonwealth (1922) 31 CLR 394; [1922] HCA 60
King v Foster [1995] NSWCA 240
Liprini v Liprini [2008] NSWSC 423
Little v Little [2026] NSWSC 36
Lorebray Pty Ltd v Liddy [2022] NSWSC 1633
Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534
Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66; [2008] HCA 42
McCrohon v Harith [2010] Aust Torts Reports 82–056; [2010] NSWCA 67
National Australia Bank Limited v Barker [2019] NSWSC 1001
News Ltd v Australian Rugby Football League Limited (1996) 64 FCR 410; [1996] FCA 870
Owners of the Ship "Shin Kobe Maru" v Empire Shipping Co Inc [1994] HCA 54; (1994) 181 CLR 404
Patsalis v Local Court of NSW [2022] NSWSC 159
Payne v Young (1980) 145 CLR 609; [1980] HCA 54
Porte v Couso (Supreme Court (NSW), McLelland J, 16 March 1992, unrep: BC9202004)
Pegang Mining Co Ltd v Choong Sam [1969] 2 MLJ 52
Prime Capital Securities Pty Ltd v Boikov [2021] NSWSC 1608
Qantas Airways Ltd v AF Liddle Pty Ltd [1981] 2 NSWLR 34
Qasim v Bird [2022] NSWSC 258
Quek v Beggs (1990) 5 BPR 11,761
Re Great Eastern Cleaning Services Pty Ltd [1978] 2 NSWLR 278
Re Multi-Tech Services Pty Ltd (in liq) (1982) 30 SASR 218
Roadshow Films Pty Ltd v iiNet Ltd (2011) 248 CLR 37; [2011] HCA 54
Ross v Lane Cove Council (2014) 86 NSWLR 34; [2014] NSWCA 50
Satchithanantham v NAB [2008] NSWSC 1097
Secretary, Dept of Social Services and Commonwealth v Cassaniti [2015] NSWSC 1586
Simic v Bailey [2024] NSWSC 1076;
Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40
Smith v Smith [2017] SASC 126
Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1991) ATPR 41-078
Tahmoor Coal Pty Ltd v Visser [2022] NSWCA 35
Taylor v Taylor (1875) LR 20 Eq 155
Vandervell Trustees Ltd v White [1971] AC 912
Victoria v Sutton (1998) 195 CLR 291; [1998] HCA 56
Walker v Commonwealth Trading Bank of Australia (1985) 3 NSWLR 496
Westpac Banking Corporation: Application of Zheng [2023] NSWSC 147
Wong v Silkfield Pty Ltd (1999) 199 CLR 255; [1999] HCA 48
Zerella v Zerella [2014] SASC 100
Texts Cited: Attorney General’s Department of NSW, An Introduction to Civil Procedure Act 2005 Uniform Civil Procedure Rules 2005, Report (2005) page 25 (see endnotes for accessible link)
Calvert, F, A Treatise Upon the Law Respecting Parties to Suits in Equity (2nd ed, 1847, W Benning)
Halsbury's Laws of Australia (LexisNexis)
Macquarie Dictionary, online ed.
Melville, Herman, Moby Dick; or The Whale (Harper & Brothers, 1851)
New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 6 April 2005; 3 May 2005; and 24 May 2005
NSW Civil Procedure (Westlaw Australia)
Ritchie’s Uniform Civil Procedure NSW (LexisNexis)
Category: Procedural rulings
Parties: Alistair James Hunt/Plaintiff (First Respondent)
Grace Elizabeth Archer/Defendant (Second Respondent)
Trevor John De Meric Griffin (Applicant)
Representation: Counsel:
A Fernon SC / Applicant
N Li / First Respondent
G Underwood / Second Respondent (8 October 2025)
R Turnbull / Second Respondent (24 November 2025, 9 February 2026)
Solicitors:
O’Neill McDonald Lawyers / Applicant
Bowman & Mackenzie / First Respondent
Paul Duffy / Second Respondent
File Number(s): 2025/00273947 (and related claims 2023/00458536 and 2024/00367717)
HIS HONOUR: "It is only when caught in the swift, sudden turn of death, that mortals realize the silent, subtle, ever-present perils of life." [1] Life is inherently fragile whether our surrounds bespeak of peril or not. The acute unexpected death of Catherine Henrietta Archer aka Kate (Catherine) on 16 March 2023 at St Vincent’s Hospital, Sydney has been the subject of a Coronial inquiry and had a profound effect upon Catherine’s family [2] .
The applicant, Trevor John De Meric Griffin (Trevor), (her asserted de facto husband) in a related proceeding recounts that he left Catherine at the Hospital in the morning to see a cardiac specialist and following her appointment she called him to collect her at the entrance to the Hospital. On his arrival, she was nowhere to be seen. Following frantic searches including notification to the police, her body was found much later that evening in a cubicle at the Hospital [3] . Catherine had suffered from a serious medical history but Trevor says her death on that fateful day was to him entirely unforeseen, overwhelming him with grief [4] .
It is unnecessary and inappropriate to probe, let alone make any findings regarding the circumstances surrounding Catherine’s death or Trevor’s reaction to it. However, her untimely death prior to that of her mother Miriam Anne Hunt, aka Mim (Miriam) (on 16 May 2024) has been the catalyst that has led to four proceedings in this Court regarding their estates.
Miriam married Ralph Hunt AO (a former deputy leader of the National Party [5] ) who predeceased her, there being 3 children of the marriage namely Catherine, Alistair James Hunt (Alistair) and Alexandria Elizabeth Eunice O’Sullivan (aka Alex Weston) (Alexandria).
Catherine, aged 58 was survived by a daughter, Grace Elizabeth Archer (Grace) from a prior marriage to Doug Archer. Trevor, a professional musician, claims to have been in a de facto relationship with Catherine from about 18 July 2018.
The four related proceedings are this proceeding by Alistair against Grace in respect of Miriam’s estate (2025/00273947 - D&WC proceeding) and the following earlier commenced proceedings:
Probate for Catherine’s estate (2023/00192940 - Catherine’s probate proceeding);
Trevor’s family provision proceeding in respect of Catherine’s estate (2023/00458536 - FP proceeding); and
Probate for Miriam’s estate (2024/00367717 - Miriam’s probate proceeding)
On 11 January 2011, Miriam made her last Will and appointed Alistair as her attorney under an enduring power of attorney (EPOA) [9] .
In October 2015, it appears that Miriam was formally diagnosed with dementia [10] - or at least that was the finding of the NSW Civil & Administrative Tribunal (NCAT).
By January 2016, NCAT found that Dr Nicholas Brennan (Miriam’s geriatrician) had noted that although she had been prescribed with Aricept for two months, it was doubtful she was taking it reliably and had continued to drink alcohol which would have the effect of accelerating her dementia. She required monitoring of the medications and nutrition [11] .
On 10 May 2016, Catherine made her last Will.
On 22 December 2016, Alistair lodged an application with NCAT seeking to be appointed as financial manager for Miriam seemingly on the basis that the EPOA “had been insufficient to protect [Miriam’s] finances” [12] .
On 20 April 2017, NCAT made a financial management order in respect of Miriam, ordering that her estate be subject to management under the NSW Trustee and Guardian Act 2009 (NSW) and appointing Alistair as the financial manager [13] .
On 8 June 2017, NCAT delivered reasons for the making of the financial management orders [14] .
It is unnecessary to make any particular findings in respect of Miriam’s condition. It may simply be noted that NCAT recorded in those reasons that:
Miriam (as widow) received a Parliamentary pension of $3,500 per fortnight; Miriam had investments with Macquarie Bank and a share portfolio for additional income; Miriam had been helping “Catherine financially for some years due to Catherine’s health problems and inability to work”; two of Miriam’s credit cards were in default and Alistair had submitted lists of transactions on the credit cards and Miriam’s bank accounts for purchases and very significant cash advances or transfers from Miriam’s cash management account and online transactions for fashion purchases unrelated to Miriam’s needs “which were attributed to” Catherine and Grace [15] .
Pitcher Partners (a firm providing various financial, tax, and advisory services) had been retained to manage Miriam’s financial affairs including her investment portfolio and set a cap on her weekly cash withdrawals; there had been arrangement with Catherine to set up a weekly regular allowance of $1500 paid via Pitcher Partners, and other bills (e.g. strata fees) were also paid by Miriam on behalf of Catherine [16] .
The above arrangements did not prevent Miriam obtaining new credit cards without Alistair’s knowledge, and Westpac (apparently the most convenient bank for Miriam to make cash withdrawals) would not recognise Alistair’s authority as attorney and refused to set a cap on withdrawals or funds or prevent a credit card being used [17] .
If my daughter CATHERINE HENRIETTA ARCHER predeceases me I direct my trustees to take into hotspot advances made by me, my husband or through family companies to or on behalf of CATHERINE HENRIETTA ARCHER when calculating the share in my residuary estate which will be paid to my daughter’s child.
There is no dispute that subject to the operation of clause 4, the deceased’s estate is divided in 3 equal shares between Alistair, Alexandria and Grace as tenants in common.
On 23 October 2024, Alastair signed a renunciation of his position as executor of Catherine's estate due to a conflict of interest [18] .
Probate of Miriam’s estate was granted on 18 December 2024 to Alistair, the named executor. Miriam’s estate (according to the inventory of property) was estimated at $5,631,018.14 (comprising a nursing home bond, monies in Westpac and Macquarie Bank accounts, Macquarie bank term deposits, Vanguard Australian Corp fixed interest deposits, numerous shareholdings and relevantly a loan to Catherine listed as being $872,578.35).
In February 2024, Grace and Alistair swore the administrator’s affidavit in the FP proceeding deposing to the value of the Catherine’s estate as follows [19] .
| Estate value at date of death **(**16 March 2023) | | Asset | | | | Rose Bay Unit | | $1,800,000.00 | | Westpac account | | $60.86 | | Resolution Life Policy | | $9,430.85 | | Personal items - (value unknown) | | $0.00 | | | | $1,809,491.71 | | Liabilities | | | | Commonwealth Bank of Australia- mortgage | $29,550.88 | | | Mrs M Hunt - Debt | $729,746.56 | $759,297.44 | | [Net estate] | | $1,050,194.27 |
and
| Estate value (February 2024) | | Asset | | | | Rose Bay Unit | | $1,250,000.00 | | Westpac account | | $60.86 | | Resolution Life Policy | | $9,430.85 | | Personal items - (value unknown) | | $0.00 | | | | $1,259,491.71 | | Liabilities | | | | Commonwealth Bank of Australia- mortgage | $29,550.88 | | | Mrs M Hunt - Debt | $729,746.56 | | | Paul Duffy solicitor Legal fees for Grant of Probate | $12,292.64 | $771,590.08 | | [Net estate] | | $487,901.63 |
On 29 May 2025, in the FP proceeding, Alistair (then still the second defendant) filed a notice of motion seeking:
leave to file a cross-summons;
orders pursuant to r 7.8 Uniform Civil Procedure Rules 2005 (NSW) (UCPR) giving conduct of Trevor’s claim against Catherine’s executors to Grace and conduct of defence of Trevor’s cross-claim also to Grace with Alistair to enter a submitting appearance in respect of both claims.
The form of cross summons sought interlocutory relief (pursuant to r 7.8 UCPR as indicated above) and final relief (being a declaration that Catherine’s estate owes $484,144.39 to Miriam’s estate and judgment against Catherine’s estate for that amount plus interest).
On 4 July 2025, each of Catherine’s probate proceeding, Miriam’s probate proceeding and the FP proceeding were listed before Lindsay J.
In Catherine’s probate proceeding, Lindsay J relevantly, noting Grace was the sole beneficiary of Catherine’s estate, revoked the grant of probate of her estate to the intent that Alistair would cease to hold the office of the legal personal representative and ordered that Grace be granted probate of Miriam’s unadministered estate, to the extent that it remained unadministered (with consequential orders).
In Miriam’s probate proceeding, Lindsay J pertinently:
ordered that Alistair be at liberty to institute proceeding against Grace (personally and in her capacity as representative of Catherine’s estate) claiming:
(a) that Catherine’s estate is indebted to Miriam’s estate; (b) a determination, directions or advice regarding the personal entitlements of Grace under clause 4 of Miriam’s Will; (c) such other relief as Trevor may be advised; and
ordered that any such proceeding against Grace be instituted by summons filed no later than 18 July 2025 returnable before the probate registrar on 31 July 2025 to be case managed with Trevor’s FP proceeding.
In the FP proceeding Lindsay J pertinently:
ordered the removal of Alistair as second defendant from the FP proceeding;
noted the anticipated summons be filed in fresh proceeding by Alistair against Grace with the intent that those proceeding would be listed (on 31 July 2025 for case management with the FP proceeding); and
noted “as presently advised” that the intention of the Court is that those fresh proceeding and the FP proceeding would be case managed together and listed for hearing before a single judge who may hear the two sets of proceeding together or successively (in which case the fresh proceeding would proceed on the hearing of the FP proceeding).
On 17 July 2025, Alistair commenced a fresh proceeding against Grace in respect of Miriam’s estate (D&WC proceeding) essentially claiming that:
Grace owed Miriam’s estate monies both in her capacity as executor of Catherine’s estate ($484,144.39) but also personally ($114,683.22); and
Alternatively, Grace in her capacity as residuary beneficiary of Miriam’s estate was entitled to a one third share of residue less $598,827.61.
On 18 September 2025, Registrar Gerritsen listed the joinder motion for hearing before me on 8 October 2025.
There have been a number of listings before me including on 8 October 2025, 24 November 2025 and 9 February 2026 and I will refer to the transcript of those occasions respectively as T1, T2 and T3. Mr Fernon SC appeared for Trevor, Mr Li appeared for Alistair and Mr Underwood and or Mr Turnbull appeared for Grace.
There was a substantive hearing of the joinder motion on 8 October 2025. I contemplated that clarifying the parties positions as to the construction of clause 4 of the Will may help the parties inter se understand each other’s position regarding the operation of clause 4 and in turn inform the Court as to whether any aspect of their positions might favour or count against joinder of Trevor.
I made a number of notations and adjourned the matter to 24 November 2025 to complete the hearing. I directed the interested parties to provide by 17 November 2025, an outline of their respective contentions as to the proper construction of clause 4 of Miriam’s Will including brief mathematical examples demonstrating the contended practical effect of the operation of that clause.
On 24 November 2025, there was a further listing and hearing before me. I adjourned the matter to before me on 9 February 2026 and made directions including the following:
Directs Alistair to file and serve an affidavit setting out with particularity which parts of the monies allegedly constituting ‘advances’ as between Catherine and Miriam (or their estates) are said to be gifts, loans (whether recoverable or statue barred or unrecoverable for some other reason) or monies taken without consent or lawful basis by 4pm on 8 December 2025.
Directs that Trevor file and serve an affidavit setting out the evidence he is able to give in regards to the abovementioned listed characterisations by 4pm on 22 December 2025.
On 9 February 2026, at the further listing of the matter, I noted the further affidavits that had been filed, oral submissions were completed and I reserved my decision.
For the purposes of the hearing, the parties prepared a Court Book (CB) [21] .
Trevor relied upon affidavits of:
his solicitor Gregory Matthew McDonald sworn 14 August 2025; and
himself dated 18 December 2025 (TG).
Alistair relied upon affidavits of:
D’Arcy Anthony Kelly (Mr Kelly) sworn 17 July 2025 and exhibit DAK-1;
himself sworn 9 September 2025; and
Mr Kelly sworn 5 December 2025 (DK).
Counsel for the parties helpfully provided written submissions as follows:
Mr Fernon SC ‘s submissions dated 3 October 2025 (TS****1) and 17 November 2025 (TS2);
Mr Li’s submissions dated 3 October 2025 (AS1) and 17 November 2025 (AS2); and
Mr Underwood’s submissions dated 3 October 2025 (GS1) and Mr Turnbull’s submissions dated 17 November 2025 (GS2).
Provisionally, Alistair’s belief about clause 4 of the Will is that subject to any ultimate construction by the Court, every dollar recovered by Miriam’s estate from Catherine’s estate will result in a net 33.33 cents gain in the dollar for each of himself and Alexandria [22] .
Concerning the construction of clause 4, each of Mr Turnbull [23] and Mr Fernon SC [24] made reference to the statement of Rich J in In re Tennant; Mortlock v Hawker & Ors (1942) 65 CLR 473 (Re Tennant) at 482 that “The intention of a testator inserting a hotchpot clause in his will is to provide that there should be a fair division amongst his children, and that they shall be equal inter se”.
Mr Li submitted [25]
4. The Estate contends that the hotchpot clause applies to gifts made by any of Mrs Hunt, Mr Hunt and family companies to Mrs Archer that were extraordinary in comparison to the gifts that were made (and not made) to either of their other 2 children. This construction reflects that:
a. Mrs Archer required an extraordinary amount of support from her parents which was not given to their other 2 children,
b. The hotchpot clause refers to a wide range of supports provided by Mr Hunt, Mrs Hunt and their “family companies”,
c. The hotchpot clause only applies if Mrs Archer predeceased Mrs Hunt and Mrs Archer’s children took in substitution, in which circumstances Mrs Archer is no longer in need of financial support (Mrs Archer no longer requires the charity of her parents and now only a gift to Mrs Archer’s children needs quantification). This balances Mrs Archer’s past extraordinary need, in changed circumstances, with fairness to Mrs Hunt’s other 2 children,
d. The Estate is not presently aware of a type of early adulthood lump sum advancement made to Mrs Archer as that expression “advancement” was used in Taylor v Taylor (1875) LR 20 Eq 155 at 157-157.
- The Estate recognises that its construction differs to the interpretation given to hotchpot clauses in Taylor v Taylor (1875) LR 20 Eq 155 at 157-157.
- In any event, the Estate contends that accounting method required by the hotchpot clause is to add to the net value of the residuary estate the amount of the advancements and then to divide the residue notionally amongst the beneficiaries and deduct from Grace Elizabeth Archer’s share the amount of the advancements made to the late Catherine Henrietta Archer.
Mr Turnbull submitted in part that [26]
any advances made by Miriam to Catherine during her life are to be brought into account and notionally added back to the pool of residue with that expanded residue to be distributed equally among the three [beneficiaries]; and
no distinction should be made between absolute gifts, loans and monies allegedly misappropriated because the word “advances” is broad enough to cover any type of payment, characterised in any way.
Mr Fernon SC submitted that clause 4 contains no limitations to the advances that should be added back like those considered in R**e Tennant and the clause does not have the effect of creating an alleged debt due and payable to Miriam’s estate by Catherine’s estate but rather an adjustment to the inheritance of the three beneficiaries of Miriam’s estate (being Alistair, Alexandria and Grace) arising from the advances made to Catherine (and Grace). [27]
Based on the written submissions, there was some difference between the positions of the counsel in that Mr Li contends that irrecoverable debts and true gifts are not taken into account for the purposes of the clause [28] and at least in the D&WC proceeding, claims are made on the basis that certain amounts would be recoverable as a debt due by Catherine’s estate or Grace rather than merely as an adjustment [29] .
On the listing on 24 November 2025, it appeared to be the case that counsel agreed that any payments precluded by the Limitation Act would not be taken into account in the hotchpot [30] . The only issue being that on Mr Li’s contentions, it would be necessary to recover amounts from Grace and Catherine’s estate whereas Mr Fernon SC submitted no recovery is required as distinct from an accounting exercise [31] . For his part, Mr Li did not appear to regard the differences being material, although acknowledged that there may be an issue as to how an amount is “notionally taken into account” if there is a dispute as to whether it should be recovered or not [32] .
Mr McDonald states that the alleged debt owed by Catherine's estate to Miriam’s estate has been an issue in the FP proceeding and the subject of much correspondence - including between Mr Duffy (solicitor for Catherine's estate) and Mr McDonald and his employed solicitor Mr Zelinka (on behalf of Trevor) over the period 2 July 2024 through to 16 December 2024 [33] .
On 6 September 2024, Mr Duffy sent Mr McDonald a forensic report from Pitcher Partners, being a lengthy spreadsheet headed "MIM Hunt Loan Kate Archer" concerning the alleged debt and stating that the accountant was still investigating the matter (Spreadsheet) [34] . According to Mr McDonald, the Spreadsheet asserted the alleged debt to be $934,528.42 as at 28 August 2024, with interest accruing at 7.5% daily [35] . The Pitcher Partners report only relates to one of the credit cards in Miriam's name [36] . There are more bank accounts and credit cards to investigate [37] .
For reasons not entirely clear, Pitcher Partners have used compounding interest in the Schedule. Mr Underwood observed that at least on one view having regard to the familial relationship between the parties [38] and the nature of the advances, there is an issue as to whether there should be any interest payable at all [39] .
On 23 October 2024, Grace, in Catherine's probate proceeding swore an affidavit in which she referred to a debt of $729,746.56 disclosed in the executor’s affidavit filed in the proceedings owing to Miriam's estate. Grace noted that the amount of the debt was in dispute [40] .
On 13 November 2024, Mr Duffy on behalf of Grace in the FP proceeding acknowledged that Catherine's estate was indebted to Miriam's estate (seemingly based on the administrator's affidavit) [41] .
On 9 December 2024, Mr Kelly informed Mr Duffy that based on the inventory of property in Miriam’s estate, Catherine’s loan (debt) was $872,538.35 [42] .
On 11 December 2024, there was a mediation of the FP proceeding [43] . The mediation had to be adjourned in circumstances where not only probate of Miriam's estate had not been issued, but the amount of the debt outstanding between Miriam's estate and Catherine's estate could not be determined [44] .
On 17 July 2025, Mr Kelly deposed that the total claimed by Miriam's estate was $598,827.61 ($484,144.39 up to Catherine's death plus $114,683.22 thereafter). He had not at that stage commissioned a forensic accountant report nor sought discovery as to the circumstances surrounding each of the relevant payments said to support the claim. He was hoping at that stage to postpone incurring costs until all reasonable attempts at obtaining an agreed statement of facts or a compromise with Grace (both in her personal capacity, and as executor of Catherine's estate) had been exhausted [45] .
For the purposes of the joinder motion, I have recited certain details above including findings recorded by NCAT. Further, the following facts are pertinent.
Alistair “does not believe that he has personal knowledge of any, or at least substantially all, of the transactions in which [Catherine] obtained a financial benefit, whether by consent or otherwise, or by loan or otherwise from [Miriam]” [50] .
The best information available to (Mr Kelly and Alistair) on behalf of the estate is the Spreadsheet supplied by Pitcher Partners on 9 July 2025 [51] .
Trevor’s position regarding evidence as to the payments is stated in his affidavit as follows:
(a) I can give evidence of what I am informed of by the documents produced in the FP Proceeding by Hunt, Grace and Pitcher Partners under either Subpoena or Notice to Produce to Court, and I propose to seek leave to rely on such documents in this proceeding
(b) I can give evidence of what I was and what I was not advised of by Kate, prior to her death including the following. I note that Grace did not share a close relationship with her mother, Kate:
I. I do not recall ever being advised by Kate that she had a loan with Miriam
II. I do not recall Kate ever advising me that she had any amount to repay to Miriam.
Ill. Kate advised me that Miriam provided her with financial support. This advice is not linked to a single conversation, but something that was said to me by Kate in the conversations I had with her from time to time. To this end, I recall Kate saying words to the following effect to me:
1. In or about late 2018, a few months after Kate and I started dating, I recall we were sitting on the sofa in Kate's apartment, discussing our finances. I recall Kate stated words to the following effect to me during this conversation: "I receive regular financial support from Mimi [Miriam] because of my health issues" and "I get a monthly allowance and help with some of my living expenses, like strata levies" and "Alastair [Hunt] and Alex resent the fact that I receive money from Mimi [Miriam], Alex in particular. Alex even accused me of faking my health problems to get money out of Mimi' (we both laughed after this, given Kate had 2 heart transplants and a failed bypass)
IV. I recall Kate advised me that Hunt managed Mimi's finances and that he received approximately $70,000 per year for doing so. I recall Kate stating words to the following effect to me, at or about the same time as the conversation I described in the preceding paragraph: "Alastair receives $70,000 a year for managing Mimi's finances. Even with that and the salary he receives from teaching at Trinity Grammar, he always complains of money problems and resents me for receiving money from Mimi'
V. Throughout my relationship with Kate, whenever we discussed our finances, Kate would say words to the effect of that she "continued to receive financial support from Mimi'.
VI. Sometime in 2021 or 2022 (at a precise time I cannot recall), I recall Kate advising me that Hunt's payment of $70,000 per year for managing Mimi's finances is "going to stop".
VII. I do not recall ever being advised by Kate that she was using money which she was not authorised to use.
VIII. Kate often complained to me about Hunt being slow to reimburse her for expenses she incurred on behalf of Miriam, such as trips to hairdresser and for the purchase of clothes. I recall Kate saying words to the effect of:
"I bought clothes for Mimi months ago, labelled the clothes as Mimi's and took them to Beresford Hall and Alastair [Hunt] still hasn't authorised any reimbursement to me"
IX. I recall Kate making complaints of this nature to me regularly.
X. Between late 2022 and February 2023 (at a precise time I cannot recall), Kate and I had a discussion concerning our finances, estate planning and our plan for how we may go about living our elderly lives together. I recall at or about this time that Kate advised me that she was expecting a "considerable inheritance" from Miriam. We discussed using that inheritance together with selling and/or renting out my property in the Blue Mountains and/or Kate's flat in Rose Bay to fund the purchase of a larger property in the Eastern suburbs where both Kate and I could enjoy our hobbies and live out our days. These matters are discussed at [53] to [56] of the Affidavit I swore on 15 December 2023 and filed in the FP Proceeding. Annexed hereto and marked "C" is a copy of pages 9 and 10 of this Affidavit including paragraphs [53] to [56].
I do not recall Kate saying to me, at this time, or any other time, that she expected her inheritance from Miriam to be reduced by a debt she owed to Miriam.
XI. I recall in February 2023, Kate discussed with me her estate plan. I recall she said words to the following effect to me:
"The estate agent told me the flat is worth about $1.5 million, and I estimate that there would be about another $300,000 of assets, so my estate would be worth about $1.8 million."
I do not recall Kate saying to me at this time, or at any other time, that she had any amount to repay to Miriam, on her death or otherwise.
XII. During the course of Kate and my relationship, she never: 1. said to me that she owed any money whatsoever to Miriam; 2. said to me that she was indebted to Miriam in any amount; 3. said to me that there was any misappropriation of funds, or that she was using funds which she did not have authority to use; and 4. said to me that the inheritance she was anticipating to receive from Miriam would be adjusted to account for a debt of any kind.
XIII. I note that Kate often referred to Miriam as Mimi.
His evidence, your Honour, is not in relation to specific transactions, but rather that he was party to conversations with the deceased in which they discussed the fact that she was receiving benefits from her mother at the time on a regular basis. There were no discussions at all about the existence of a debt or a liability, or a possibility that there would need to be a repayment. There was a discussion about her expected entitlements under the will of her mother, but there was certainly no evidence about a debt, and equally there’s references to subpoenas that have been issued to Pitcher Partners and to Grace also about production of documents to establish a debt, and no documents have been produced in relation to that.
Alistair’s position in respect of payments from Miriam’s accounts is conveyed in the evidence of Mr Kelly, namely that estate’s current position is that [53] :
payment of the Pitcher Partners allowance of $1,500 and “other bills such as strata fees” was consensual and gave rise to a loan”.
spending on behalf of Catherine after 20 April 2017 (the date of the “guardianship orders” [54] ) not paid by Pitcher Partners are misappropriations by Catherine; and
the balance of payments made to or on behalf of Catherine between 27 May 2014 and 20 April 2017 are misappropriations by Catherine.
Further, Alistair’s position as executor of Miriam’s estate is that any operation of limitation period on recovery is postponed by operation of s 52 Limitation Act by reason of Miriam’s diagnosis of dementia in or around October 2015 [55] .
Trevor’s position as articulated by Mr Fernon SC is that:
Catherine's estate is not indebted to Miriam's estate because of cl 4 of Miriam's Will and the operation of s 63 Limitation Act [56] .
There are disputed facts in particular as to the circumstances of advances made after Catherine died [57] .
Leaving aside the question of "debt recovery", it may be, depending on findings, that amounts advanced to Catherine would be taken into account for the purposes of cl 4 of Miriam's Will in working out what distribution is to be made to Grace from Miriam’s estate [58] .
Grace has a conflict of interest from her position as executor of Catherine's estate and her position as beneficiary of Catherine's estate and of Miriam's estate. She is required to protect and maximise the value of Catherine's estate, yet she clearly seeks to maximise the overall return from Catherine's estate and Miriam’s estate and minimise Trevor's claim. Grace’s previous acceptance of the alleged debt (in whatever sum) without apparent question or proper consideration is indicative of the conflict [59] .
Joinder of a person whose interests are directly affected by the orders sought depends on matters of right affecting non-parties which rest on general law principles of natural justice rather than upon rules of Court [60] . One aspect of this is to prevent injustice being done to a person whose rights will be affected by its judgment by proceeding to adjudicate upon the matter in dispute in the action without his being given an opportunity of being heard [61] .
The principle that all persons materially interested in the subject-matter of the suit ought generally to be made parties to it so as to settle the controversy by binding those interested to final orders is sourced in the practice of Chancery [62] and is reflected in the current rules of Court (UCPR r 6.24) [63] .
Because the underlying concern is at least based on natural justice, where no prejudice would be suffered by a party not being joined, joinder may be dispensed with [64] .
Further, another reason underlying the principles regarding joinder of parties is sourced in the law’s concern to avoid multiplicity of suits and to achieve finality in litigation. This is voiced in statutory provisions which seek to encourage parties to bring forward all claims they have against one another so that they may be completely and finally determined, and avoiding multiplicity of proceedings [65] and empowering the Court to give such relief as the nature of any case may require with a view to finality [66] . The avoidance of “multiplicity of proceedings” was emphasised by the High Court in John Alexander’s Clubs to be an important consideration in relation to joinder. [67] .
The non-joinder of affected parties to proceedings does not render orders made a nullity. The modern Court rules (sourced in Chancery practice) provide that proceedings are not defeated merely because of non-joinder of any person as a party to the proceedings [68] .
However, despite non-joinder, an affected party who should have been joined is generally entitled to have orders set aside [69] . In fact, McHugh J referred to “the invariable practice of the courts to require such a person to be joined as a party if there is an arguable possibility that he or she may be affected by the making of the order” [70] .
Claims for relief are critical (and perhaps decisive) to determining who are proper parties to proceedings [71] .
The UCPR [72] has a wide range of rules which require parties who are proper or necessary to proceedings to be joined, deal with the effect of non-joinder and removal of parties, and permit joinder. There is some degree of overlap in the rules regarding joinder so that the boundary of the rules are not fixed, with there being some common ground where certain parts of some rules may validly operate [73] .
The Court’s power to join parties to proceedings is not exhausted by UCPR rr 6.19, 6.24 and 6.27 nor even necessarily dependent upon it.
For example, there are other statutory provisions and rules which permit joinder in specific cases. The general position in respect of family provision claims is the applicant must only join as a defendant any administrator, unless the plaintiff is the sole administrator of the estate and that other persons are not joined as defendants. Nonetheless there is a power of joinder if there is “sufficient reason for doing so” [74] .
Having said that, the most frequently used UCPR provisions addressing joinder of non-parties to proceedings are UCPR r 6.19 and r 6.24.
Construing court rules as with other statutory construction depends upon the purpose, text, context, coherence and legislative history of the relevant provision [75] .
6.19 Proceedings involving common questions of law or fact
(cf SCR Part 8, rule 2; DCR Part 7, rule 2; LCR Part 6, rule 2)
(1) Two or more persons may be joined as plaintiffs or defendants in any originating process if--
(a) separate proceedings by or against each of them would give rise to a common question of law or fact, and
(b) all rights of relief claimed in the originating process are in respect of, or arise out of, the same transaction or series of transactions,
or if the court gives leave for them to be joined.
(2) Leave under subrule (1) may be granted before or after the originating process is filed.
The reference to “originating process” in UCPR r 6.19 definitionally includes a cross-claim [76] .
The predecessor of UCPR 6.19 was SCR Pt 8 r 2, which at material times and relevantly up to the introduction of the UCPR was in the following form
Joinder of parties generally
cf RSC (Rev) 1965, O 15, r 4 (1).
Two or more persons may be joined as plaintiffs or defendants in any proceedings:
(a) where:
(i) if separate proceedings were brought by or against each of them, as the case may be, some common question of law or of fact would arise in all the proceedings, and
(ii) all rights to relief claimed in the proceedings (whether they are joint, several or alternative) are in respect of or arise out of the same transaction or series of transactions, or
(b) where the Court gives leave so to do.
Clearly r 6.19(1) permits joinder in cases where there is both a common question and relief in respect of a same transaction or series of transactions.
There is suggestion that UCPR r 6.19 applies only to joinder by the moving party on the relevant originating process when some relief is sought by the moving party against the proposed defendant [77] . It is not necessary to address those matters as it is accepted here that the requirements of r 6.19(1)(b) are not satisfied.
However, there is a residual discretion in r 6.19(1) conveyed by the concluding 11 words “or if the court gives leave for them to be joined” (residual discretion).
In the early 1990s, there was an initial flurry of cases dealing with joinder applications involving large groups in representative proceedings.
In Bishop v Bridgeland Securities (1990) 25 FCR 311 (Bishop), Wilcox J addressed the residual discretion at 314-315 as follows:
As the discretion conferred by subr (b) is, in terms, unconfined, it would be inappropriate to specify circumstances in which it might be applied. Everything must depend upon the facts of the particular case. But it is appropriate to consider what principles ought to guide the exercise of such a discretion. The basic principle, as it seems to me, is that the Court should take whatever course seems to be most conducive to a just resolution of the disputes between the parties, but having regard to the desirability of limiting, so far as practicable, the costs and delay of the litigation. Considerations of costs and delay may often support the grant of leave under subr (b); but, in my opinion, leave ought not to be granted unless the Court is affirmatively satisfied that joinder is unlikely to result in unfairness to any party. Secondly, regard must be had to practical matters. For example, it would normally be inappropriate to grant leave for the joinder of applicants who were represented by different solicitors. There must be a single solicitor, or firm of solicitors, who is accountable for the conduct of the proceeding on the applicants' side of the case. Similarly, although all applicants might propose to rely upon some common, or similar facts, there may be such differences between the evidence intended to be relied upon in support of the claims of particular applicants as to make it inexpedient to join the claims. The discrete material may overbear that which is common to all the claims. Again, there may be cases in which the sheer number of the claims, if joinder is permitted, will impose an undue burden on the respondent; although it seems to me unlikely that this will be so except in cases where separate evidence is proposed to be adduced in support of individual claims.
In Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1991) ATPR 41-078, Rogers CJ Comm D considered the discretionary aspect of SCR Pt 8 r 2 [78] . His Honour considered a number of matters but relevantly referenced the decision of Wilcox J (above) stating that at least one of the basic principles that guided the operation and application of that part of the rule is that the Court must take whatever course is most conducive to adjust resolution of the dispute between the parties, but having regard to the desirability of limiting so far as practicable, the costs and delay of the litigation [79] .
In Esanda Finance Corporation Ltd v Carnie (1992) 29 NSWLR 382, the Court of Appeal addressed principles relevant to a form of representative action under the then SCR Pt 8 r 13. Kirby P albeit in that context favourably commented on the decision of Wilcox J in Bishop [80] stating as follows at 397B-E
The approach which I favour has been adopted in at least some courts in Australia. Thus in Bishop v Bridgelands Securities (1990) 25 FCR 311, Wilcox J adapted O 6, r 2(b) of the Federal Court Rules 1979 (Cth) to permit 116 claimants to be joined in an action which involved common issues concerning an alleged contravention by a financier of s 52 of the Trade Practices Act 1974 (Cth) and s 68E of the Securities Industry Act 1980 (Cth). Wilcox J accepted, as the principles to be applied, that the Court should take whatever course was most conducive to a just resolution of the disputes between the parties. But in this regard he held that it was relevant to take into account the desirability of limiting, so far as practicable, the costs and delays of litigation. Necessarily, there was some evidence upon which the individual plaintiffs might propose to rely in common with all others. There were also differences between the evidence intended to be relied upon in particular cases. Wilcox J fashioned, with explicit orders, procedures which were then framed so as to avoid unfairness to any party but at the same time to allow the Federal Court to bring to resolution the issues common to the various individual claims: see also, Re Grace Bros Financial Services Ltd (1987) ASC ¶55-591.
In my respectful view, this is the proper approach by which an Australian superior court in 1992 should respond to litigation which, increasingly, will present issues common to many persons, for decision according to law. It is the approach which informs my response to the issues before this Court in the instant proceedings.
It seems to me that the court's task is to identify disadvantages of these kinds, and to weigh them up against identified advantages to the plaintiff, to the defendants as a whole, and in terms of the efficient use of the court's resources, having regard to the commonality of the issues raised by each claim and the court's ability to case manage so as to minimise the disadvantages. In some cases the disadvantages to a defendant will be so great as to outweigh the advantages of a single proceeding, and the court should therefore decline to exercise its discretion under subr (b) as to the joinder of that defendant. In other cases, the sensible and practical solution will be to grant leave to the plaintiff to join all defendants to the proceeding, subject perhaps to case management and review at a later stage.
In 2005, the specific introduction of CPA Pt 10 setting up a detailed framework for dealing with such representative claims lessened the need for resort to other joinder powers (and relevantly r 6.19 and its predecessors).
Since then, the decision of Wilcox J in Bishop has been rarely commented upon in this Court.
In Australian Securities and Investments Commission v Somerville [2008] NSWSC 788 (Somerville), Austin J had cause to revisit the issue this time expressly having regard to the provisions of the discretion in UCPR 6.19 stating at [43]-[45]:
[43] The court's task in deciding whether to grant leave under the equivalent of r 6.19(1) has been described as follows: the Court should take whatever course seems to be most conducive to a just resolution of the dispute between the parties, but having regard to the desirability of limiting, so far as practicable, the costs and delay of the litigation … but … leave ought not to be granted unless the court is affirmatively satisfied that joinder is unlikely to result in unfairness to any party: Bishop v Bridgelands Securities (1990) 25 FCR 311, at 314 per Wilcox J.
[44] I was taken in submissions to some observations I made in Dean-Willcocks v Air Transport International Pty Ltd (2002) 55 NSWLR 64 at 73–4: [T]he court's task is to identify disadvantages … [to the defendants, including the possibility of unfairness] and to weigh them up against identified advantages to the plaintiff, to the defendants as a whole, and in terms of the efficient use of the court's resources having regard to the commonality of the issues raised by each claim and the court's ability to case manage so as to minimise the disadvantages.
[45] These considerations are now best viewed as an application of the overarching requirement of the Civil Procedure Act that the court should facilitate the just, quick and cheap resolution of the real issues in the proceeding.
In Ghose v Cx Reinsurance Company Ltd and Ors [2010] NSWSC 110 (Ghose) Austin J considered the consolidation provisions of UCPR r 28.5 and in that context very briefly referenced the decision in Bishop [81] . Ghose does not advance the Bishop analysis.
In Hughes v Fong [2016] NSWSC 1451, Campbell J at [18] stated regarding the general discretion:
So far as the general discretion is concerned, reference is most frequently made to the judgment of Wilcox J in Bishop v Bridgelands Securities(1990) 25 FCR 311 at 314. The guideposts derived from his Honour’s judgment seem to be: the exercise is fact-sensitive and no general rule can be stated; the basic principle is the adoption of the course “most conducive to a just resolution of the disputes between the parties”, and (these days) by application of the overriding purpose of the just, quick and cheap resolution of the real issues; leave ought not to be granted unless the court is “affirmatively satisfied the joinder is unlikely to result in unfairness to any party” [emphasis added]; and regard must be had to practical matters such as is there single representation, are the similarities of the cases so outweighed by the differences “as to make it inexpedient to join the claims”. Austin J pointed out (at [31]), Wilcox J’s guideposts were augmented by Goldberg J in Carter v Cmr of Taxation(2001) 109 FCR 215 at 221 [23] by adding the consideration “that the Court should also be concerned to determine what is the most efficient use of the resources of the parties and also of the Court.” This, of course, is entirely consistent with the application of the overriding purpose. Austin J said this requires “a practical calculation of advantages and disadvantages”.
In Prime Capital Securities Pty Ltd v Boikov [2021] NSWSC 1608 (Boikov), Campbell J at [17] referenced Bishop. Further, Boikov, also does not relevantly advance the Bishop analysis.
Of some significance is that the operation of the rule in discretion was briefly addressed by the Court of Appeal in CGU Insurance Ltd v Bazem Pty Ltd [2011] NSWCA 81 (Bazem). Bishop was not cited nor were the decisions of Austin J in Dean-Willcocks and Somerville.
Macfarlan JA at [27]-[29] relevantly stated (Beazley JA at [1] Hodgson JA at [2] agreeing).
27 The power given by these concluding words of UCPR r 6.19(1) is not in my view available only where the conditions stated in r 6.19(1)(a) and (b) are satisfied. These conditions are applicable where a party commences proceedings: the party may join more than one defendant as of right if the conditions are satisfied. There is no reason however why the Court's discretion to grant leave for the joinder of defendants should be so limited when the power granted to the Court is expressed in unqualified terms.
28 Nor in my view should it be regarded as otherwise limited in the manner that the Insurer contends it should. As the High Court said in Owners of the Ship "Shin Kobe Maru" v Empire Shipping Co Inc [1994] HCA 54; (1994) 181 CLR 404, "[i]t is quite inappropriate to read provisions conferring jurisdiction or granting powers to a court by making implications or imposing limitations which are not found in the express words" (at 421).
29 As the power here is expressed in unqualified terms, I do not consider that there is any sound basis for the Insurer's submission that at least one of a limited number of factors must be present before the Court's power to grant leave under this provision arises. ……
…. The development of guidelines (of the type to which Mason CJ referred in Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534 at 541) for the exercise of the discretion conferred by the rule might encourage or discourage the exercise, in the circumstances that I have described, of the power to grant leave. But that is a different issue from one of whether the power to grant leave exists.
It may be accepted that a number of the above-mentioned decisions including the decision of Wilcox J occurred in very different factual circumstances to that of this case. Nonetheless, acknowledging the exercise is fact-sensitive, the observations of Rogers CJ Comm D, Austin J and Campbell J suggests that the approach to be taken in relation to the discretion can proceed safely in accordance with the principles outlined by Wilcox J and the remarks of Macfarlan JA in Bazem do not suggest otherwise.
The Court in making case management decisions is entitled to consider the effect of such a decision on Court resources and the competing claims by litigants in other cases awaiting hearing in the court as well as the interests of the parties [82] . What might be perceived as an injustice to a party when considered only in the context of an action between parties may not be so when considered in a context which includes the claims of other litigants and the public interest in achieving the most efficient use of court resources [83] .
Mr Li submitted, citing Walker at 503 and Coastal at [49] that the residual discretion element of r 6.19 only permits joinder by the moving party on the relevant originating process with some relief sought by the moving party against the proposed defendant. In Walker Needham J relevantly stated [84]
So far as Pt 8, r 2, is concerned it was suggested on behalf of the defendant that each requirement of r 2(a) had been satisfied. I have already set out the terms of the rule. On the other hand, it was submitted by the mortgagors that the rule applied only to joinder by the plaintiff and the statement of Mason J in Payne v Young (1980) 145 CLR 609 at 618 was relied upon. That certainly appears to be the case, but, additionally, it seems to me that joinder under r 2(a) could be ordered only if some relief is to be sought by the plaintiff against the proposed new defendant.
Where—
(a) a right to relief in respect of, or arising out of, the same transaction or series of transactions is alleged to exist in more than one person, whether jointly, severally or in the alternative; and
(b) if those persons brought separate proceedings a common question of law or fact would arise,
those persons may be joined in one proceeding as plaintiffs.
(2) Where, upon the application of a defendant, it appears that the joinder may embarrass or delay the trial or hearing, the Court or a Justice may order separate trials or hearings, or make such other order as is expedient, and judgment may be given for such one or more of the plaintiffs as are found to be entitled to relief, for such relief as he or they may be entitled to, without any amendment.
Relevantly, two things are evident from the reasons for judgment. First, the wording of O 16 r 1 whilst bearing some similarity to SCR Pt 8 r 2 is materially different in that it simply does not contain the disjunctive “residual discretion” provision of SCR Pt 8 r 2(b). Secondly, Barwick CJ, Stephen and Mason JJ only relevantly addressed the terms of O 16 r 1(a) (“relief in respect of, or arising out of, the same transactions…”) [86]
The balance of the comments of Needham J at 503A-B are expressly directed to Pt 8 r 2(a). It is simply not the case that Walker supports the proposition that the residual discretion under SCR Pt 8 r 2(b) (or relevantly here the residual discretion under r 6.19) may only be exercised if some relief is to be sought by the plaintiff against the proposed new defendant.
6.24 Court may join party if joinder proper or necessary
(cf SCR Part 8, rule 8(1); DCR Part 7, rule 8(1); LCR Part 6, rule 8(1))
(1) If the court considers that a person ought to have been joined as a party, or is a person whose joinder as a party is necessary to the determination of all matters in dispute in any proceedings, the court may order that the person be joined as a party.
(2) Without limiting subrule (1), in proceedings for the possession of land, the court may order that a person (not being a party to the proceedings) who is in possession of the whole or any part of the land (whether in person or by a tenant) be added as a defendant.
Within the Judicature system, the essential language and structure of the rule has been in place for over 150 years, with a delayed introduction in NSW until the commencement of the SCA in July 1972 [87] .
Relatively soon after the commencement in NSW, Needham J emphasised the appropriateness of construing the rules without gloss [88] .
Elucidation and adoption (or application) of the principles have not always been uniform [89] . Doubtless this is because, “both the justification for, and the practical significance of, a distinction between, on the one hand, a person who “ought to have been joined” and, on the other, a person whose joinder is “necessary”, is extremely difficult to formulate” [90] . The Court of Appeal has observed that determination of who “ought to be joined” or who “is a necessary party” is not always uncontroversial and not necessarily simple [91] . In law, such difficulties often lead lawyers and judges to explain or describe the terms of statutory provisions by reference to other terms or concepts. Sometimes that is useful. However, it risks gloss [92] with consequential diversion (by enlargement, restriction or otherwise) from the true meaning and operation of the power.
“Ought” conveys the meaning of being bound in duty or moral obligation or requirement as matter of justice or propriety [93] . “Necessary” is to similar effect conveying something that is indispensable or requisite [94] .
There is seemingly no bright line between the “oughtness” limb and the “necessary” limb, which have been described as being overlapping [95] . Nonetheless, UCPR r 6.24 requires satisfaction of either the “oughtness” limb or the “necessary” limb, and no occasion for the exercise of any discretion regarding joinder arises unless one of those two limbs is satisfied [96] .
(a) the determination of the matters in dispute in the proceedings will affect the person to be joined in some material respect, such as directly affecting their rights or interests [97] ; and (b) the person sought to be joined can assist the Court in the determination of the matters in dispute [98] .
The reason for joinder differs between those categories. For the first category, reasons include protection of the person’s rights or liabilities, binding them by any judgment or order, or according them procedural fairness. For the second category, it is to assist the court to determine, effectually and completely, all matters in dispute in the proceedings [99] .
Beyond the above, the question of what constitutes “oughtness” or necessity” is explained by case law of the highest authority. Thus, where a court is invited to make, or proposes to make, orders directly affecting the rights or liabilities of a non-party, the non-party is a necessary party and ought to be joined [100] .
Mere notice to the person affected by the order is insufficient. There is an obligation (rather than a discretion) upon the party seeking the order to join the affected person [101] .
In Ross, the Court of Appeal did not need to reach a concluded view regarding the role of CPA ss 56-59 in relation to joinder [102] . That said, prima facie, nothing in CPA ss 56-59 undermines the general law joinder principles [103] , and on one view it is easy to see that in many cases the overriding purpose and case management guidelines and dictates reinforce the sensibility of joinder of an affected party.
The “direct affect” test has being described in terms of not merely affecting the “rights or liabilities” of a non-party but more broadly in terms of a party’s “interests” in the “subject matter” of the dispute [104] .
Non-exhaustively, a number of propositions discerned from case law may be stated:
where an order seeks to establish or recognise a proprietary or security interest in land, chattels or a monetary fund, all persons who have or claim an interest in the subject matter are necessary parties - because an order in favour of the claimant will, to a corresponding extent, be detrimental to all others who have or claim an interest [105] ;
where the subject matter of the proceedings is not of the above kind, the ascertainment of necessary parties who ought to have been joined may be more difficult [106] ;
the test involves matters of degree, and ultimately judgment, having regard to the practical realities of the case, and the nature and value of the rights and liabilities of the third party which might be directly affected [107] ;
prior to hearing, a question arises whether a necessary party has been joined is discerned by reference to the orders sought in the proceedings and the effect of the orders upon the third party [108] ;
the test is not whether the conduct of the third party is raised in the pleadings between the existing parties, or whether the third party is a party to a contract, the meaning or effect of which is pleaded as a matter relevant to the ascertainment of the rights between those parties [109] ;
6.27 Joinder on application of third party
(cf SCR Part 8, rule 8; DCR Part 7, rule 8; LCR Part 6, rule 8)
A person who is not a party may apply to the court to be joined as a party, either as a plaintiff or defendant.
First impressions suggest that it is a rule in broad untrammelled terms. If that were the case, one might think r 6.27 would be the gateway for most applicants to joinder. However, there are a few cases that deal with it. On rare occasions, r 6.27 appears to have been used as a type of standalone or independent power for joinder without reference to r 6.24 [118] .
As I have mentioned above, understanding the scope of the provision depends upon the purpose, text, context, coherence and its legislative history [119] .
Section headings and marginal notes such as the comparative reference to SCR are generally not taken to be part of the UCPR [120] . However, parenthesised comparative notes to r 6.24 “(cf SCR Part 8, rule 8(1)…)” and to r 6.27 “(cf SCR Part 8, rule 8…)” show a connection between the rules with both rules being sourced from a common predecessor namely SCR Pt 8 r 8(1).
There is nothing in the draft Civil Procedure Bill (including the draft UCPR rules) (Bill) and the Explanatory Note, or the Second Reading Speeches for the introduction of the Bill in either of Legislative Assembly (by the Attorney General the Honourable Bob Debus) on 6 April 2005 [121] , which suggest r 6.27 was intended to be a novel new power.
The Attorney General referenced the Working Party established in early 2003 to rationalise and simplify civil court rules in New South Wales chaired by Justice Hamilton [122] and highlighted the overriding purpose provision and associated developed case management guidelines and principles [123] .
The Attorney General noted that whilst the [UCP] rules carried over a large number of the existing [SCR and other] rules and generally follow the existing order of those rules, the opportunity had been taken to group like rules together where appropriate. He cited as an example, the rules in relation to parties to proceedings being grouped together in Part 7 UCPR instead of being scattered throughout the rules. Specifically, the Attorney General identified some new matters are addressed in the rules. However, this did not include changes to the provisions regarding the basis for joinder of non-parties to proceedings [124] .
Generally, substantive rule change was not on the agenda. In the process of unification, and modern drafting, the Working Party’s aim was to “consolidate provisions about civil proceedings into a single bill and develop a common set of rules, simplified where possible but without radical changes in substance or form” [125] . The uniform rules largely reflect existing provisions and continued to use phrases that had a settled legal meaning to expressly avoid debates about substantive changes [126] .
Likewise, in the Legislative Council the Honourable Henry Tsang, Parliamentary Secretary, made the same point [127] :
The working party's aim was to consolidate provisions about civil proceedings into a single bill and develop a common set of rules, simplified where possible but without radical changes in substance or form.
The bill and rules largely reflect existing provisions and continue to use phrases that have a settled legal meaning. Where there is change, much of it can be attributed to the fact that drafting styles have changed over the past 30 years. Parties should not be arguing that a rule has changed because a modern drafting style has been adopted if the substance of the rule remains the same. This approach is designed to minimise unnecessary litigation about the meaning of a clause or rule.
None of the other Second Reading Speeches [128] , nor the ‘Attorney General's Department of NSW – An Introduction to the Civil Procedure Act 2005 Uniform Civil Procedure Rules 2005*’* even remotely suggests that in the rules which deal with joinder of parties, r 6.27 was intended to create a new independent and unqualified basis for joining parties [129] .
Predominately, r 6.27 does not appear to have been construed as an independent power permitting joinder other than in accordance with the ‘direct affect’ requirements, for what I will describe as a ‘proper’ purpose, nor to circumvent or undermine the provisions of r 6.24 [130] The commentary in NSW Civil Procedure (which expressly links r 6.27 with r 6.24) is to the same effect [131] .
Other occasional use of r 6.27 without reference to r 6.24, properly construed does not undermine the proposition. Thus, it appears to have been deployed without reference to r 6.24 in circumstances for example where a party who contends to be interested in funds that have been paid into court seeks an order for payment out of funds [132] , where a beneficiary seeks to pursue action which a trustee has declined to prosecute [133] , in some cases where the Attorney-General seeks to intervene in proceedings [134] or potentially in some cases involving a non-party who is the recipient of a subpoena.
If the above is the case, what is the purpose of r 6.27? In the absence of submissions on the matter, I will not venture any concluded view. However it seems to me that a principal purpose of r 6.27 is facilitative, thus making it clear that non-party may invoke r 6.24 to seek joinder. Such a construction is consistent with above-mentioned cases. Likewise, it seems to me that r 6.27 would similarly be read with r 6.19, making it clear that a non-party may invoke r 6.19 to seek joinder.
Mr Fernon SC referenced the High Court decision in Roadshow Films Pty Ltd v iiNet Ltd (2011) 248 CLR 37; [2011] HCA 54 (Roadshow Films).
Applications to intervene are sometimes coupled with applications for joinder. Nonetheless, there is a difference between intervention in the sense of a Court permitting a party to appear and make submissions whether as amicus otherwise on the one hand and joinder on the other [135] .
The Roadshow Films principles referenced by Mr Fernon SC are to the effect that:
a non-party whose legal interest, for example, in other pending litigation is likely to be affected substantially by the outcome of the proceedings in this Court will satisfy a precondition for leave to intervene [136] ; and
where a person having the necessary legal interest can show that the parties to the particular proceedings may not present fully the submissions on a particular issue, being submissions which the Court should have to assist it to reach a correct determination, the Court may exercise its jurisdiction by granting leave to intervene, albeit subject to such limitations and conditions as to costs as between all parties as it sees fit to impose [137] .
However, Trevor’s application is not for intervention to merely make submissions but for joinder in a full party participation sense.
Finally, having regard to the nature of issues in the proceedings, I note that there are instances of parties being joined to family provision proceedings to address issues regarding the value of an estate. In Zerella v Zerella [2014] SASC 100, Bampton J dismissed an appeal against an order of a Master of the court joining the trustee of the family trust in circumstances where the principal asset of the estate was said to be debt due to the deceased from the trustee in this capacity is trustee of the trust. Bampton J considered that the joinder was appropriate in circumstances where the value of the debt was directly relevant to the value of the estate and the subject matter of the family provision proceedings, the court had jurisdiction to determine the size and value of the estate and that it was appropriate to join the trustee for it to be bound by any finding as to value [138] . In particular, an aspect of the basis for the application for joinder was that if there was subsequent need for action by the executors against the trustee for repayment of the debt or an action for devastavit or for breach of fiduciary duty, the determination of the value of the debt would be binding upon the trustee [139] .
In Smith v Smith [2017] SASC 126, Master Roder permitted joinder of parties to address in family provision proceedings a disputed question regarding the existence of a debt. His Honour, at least in part, considered that the joinder would avoid multiplicity of actions [140] .
Discussion regarding joinder principles would not be complete without recognising that the Court may dispense with aspects of the requirements of the joinder rules, or may impose conditions upon joinder and permit alternative positions to be taken which allow some degree of intervention in proceedings which falls short of joinder.
First, the Court may, pursuant to CPA s 14, dispense with any requirement of rules of Court if satisfied that it is appropriate to do so in the circumstances of the case. The dispensation power was not the subject of submissions in the case and I will not dwell on it further.
Secondly, the Court may, pursuant to CPA s 86, make orders on such terms and conditions as at thinks fit.
Thirdly, there are other mechanisms for addressing the position where there is doubt whether the decision is one which could have been made in the proper exercise of its functions short of joining the objector as a party - this includes a non-party participating as an amicus curiae [141] .
Counsel for the parties made various written and oral submissions.
The principal contest arose from the submissions of Alastair to Trevor’s position. Mr Underwood in his submissions on behalf of Grace opposed the joinder raising some similar submissions advanced by Mr Li [142] . For that reason, whilst acknowledging Grace’s position and submissions, and noting that I have taken them into account, there is no need to separately recount her submissions.
Mr Fernon SC in his initial written submissions contended that both limbs of r 6.19(1)(a) and (b) had been satisfied [143] . However, during the hearing before me, he accepted my proposition that he could not satisfy the criteria in r 6.19(1)(b) [144] . Thus, he accepted that to be joined pursuant to r 6.19 he would have to rely upon the “residual discretion” [145] .
Otherwise the submissions of Mr Fernon SC may be summarised as follows:
The test for joinder is “direct affect” based on John Alexander's Clubs [146] and thus the "necessary" limb in r 6.24 is satisfied [147] .
In both the FP proceeding and the D&WC proceeding there is dispute over a “monetary fund" which is Catherine's estate [148] . Alastair is seeking to recover the alleged debt from the "monetary fund" and if Alastair is successful in whole or in part it will directly reduce the "monetary fund" that is the subject of the FP proceeding [149] . In that respect, he contends that there is a direct affect within the John Alexander's Clubs principle not merely an indirect affect as contended by Mr Li [150] .
The outcome of the issues in the D&WC proceeding in particular in relation to the amount of the alleged debt will (or potentially will) greatly affect the value of Catherine's estate as to what constitutes Catherine's estate and what, if any, liabilities are owed by it [151] .
The fact that Alastair as representative of Miriam's estate is not seeking orders against Trevor is beside the point and does not engage with the direct affect principle. It is sufficient that Alastair as representative of Miriam's estate and Trevor have a claim on the same "monetary fund" being Catherine's estate [152] .
In circumstances where Mr Turnbull acknowledges that there is a real issue as to the extent of Catherine’s estate, there is a risk that there would be conflicting judgments on that issue in the proceedings [153] .
The residual discretion under r 6.19 ought to be exercised in favour of joinder because it will avoid a multiplicity of proceedings and be "most conducive to a just resolution of the disputes between [all of] the parties" [154] .
If Trevor can give the relevant evidence on the debt issue (which Mr Li accepted), the weight of the evidence (or probative value) is beside the point [155] .
If Trevor is joined to the D&WC proceeding, it will not result in unfairness to any other party (there being no evidence of unfairness), but he will suffer unfairness if he is not so joined, losing the ability to advocate against the alleged debt and the potential detrimental effect of it on his claim against Catherine's estate [156] .
The submissions of Mr Li may be summarised as follows:
Regarding UCPR r 6.19 as between “the two operations [r 6.19(1)(a) and (b) and the residual discretion], r 6.19 applies only to joinder by the moving party…when some relief sought by the moving party against the proposed defendant” and accordingly it does not supply a basis for Trevor to be joined to the existing proceedings because Alistair is the moving party on the summons and he does not seek to invoke r 6.19 [157] .
UCPR r 6.24 requires satisfaction of either the “oughtness” limb or the “necessary” limb, and no occasion for the exercise of any discretion regarding joinder arises unless one of those two limbs is satisfied [158] . On the facts neither limb is satisfied [159] .
The principles in John Alexander’s Clubs govern the exercise of the power to join persons as parties to proceedings under r 6.24 [160] . The test is of direct affect of the rights and liabilities of the non-party [161] . Mere “financial effects” [sic] which are consequential in nature is insufficient to justify joinder [162] , examples of which include
(a) refusal of joinder of chargees of equipment left at a wharf in proceedings in which a licensor of the equipment had sought and obtained orders permitting it to cause the equipment to be dismantled and delivered to the former licensee and requiring the licensee to accept the equipment so delivered [163] , and (b) in proceedings between the landlord and tenant concerning the purported exercise of adoption to renew a lease the landlord’s predecessor in title and the mid Coast Council were refused leave to join proceedings in which the they sought to be heard about the validity or invalidity of the exercise of the option on the basis that it may affect the quantum of damages that the tenant had claimed against them in separate proceedings for alleged negligence and historical breaches of the lease [164] .
(a) Trevor does not seek any orders against Alistair or Grace and there are no pleaded allegations involving him [174] ; (b) a joinder risks Trevor “engaging in a roving commission as to the financial relationship” between Miriam’s estate and Catherine’s estate which is [or would be] antithetical to the adversarial nature of the litigation and the Court would not be assisted by him raising issues which the other parties have either admitted or choose not to take [175] ; (c) joinder would be inconsistent with the CPA s56 overriding purpose resulting in additional costs or risk of costs and further interlocutory steps and preclude any compromise of the dispute or discontinuance of the proceedings being affected without his consent or the leave of the Court [176] ; (d) there is no basis for suggesting that Alistair and Grace are incapable in respect of the prosecuting in defending Alistair’s claims [177] ; (e) there is an adequate contradictor to Alistair’s claims and having regard to analysis of recovery outcomes (recovery by Miriam’s estate against Catherine’s estate is likely to result in Grace losing $0.66 for every $1 of recovery, whereas a successful defence will result in Grace keeping one dollar for every dollar denied to Miriam’s estate) there is no incentive for Alistair to compromise the claims by Miriam’s estate for less than the reasonable value nor any incentive for Grace to abandon any defence otherwise available to Catherine’s estate [178] ; and (f) joinder does not resolve multiplicity of proceedings and may prevent the effective running of the two proceedings separately [179] .
It is convenient to start with the proposition of Mr Fernon SC that the debt issue in the D&WC proceeding and the estate size issue in the FP proceeding are connected in the sense that there is dispute over a “monetary fund" which is Catherine's estate.
There is little doubt that there is a connectedness between the debt issue in the D&WC proceeding and the estate size issue in the FP proceeding. The debt issue is a type of ultimate issue in the D&WC proceeding. Specific relief (in the form of a judgment) is sought in relation to an amount of the debt. In the FP proceeding, the estate size issue is not an ultimate issue. There is no relief sought in the form of a declaration or otherwise as to the size of Catherine’s estate.
The right of an eligible person to seek determination by the Court of his or her application for a family provision order, which is based on statutory provisions, does not give rise to any interest in property (if at all) until such time as a positive order is made under the Succession Act conferring such an interest [188] . Mr Li describes the nature of Trevor's claim in the FP proceeding as being an interest of the prospective unsecured creditor [189] . However, even that characterisation is a little doubtful [190] .
Nonetheless, whether Trevor succeeds in getting any ultimate form of provision relief, will depend upon a number of factors of which on any view of it includes the size of Catherine’s estate including whether it is burdened by a judgment arising from the debt issue in the D&WC proceeding.
The question as to the amount of deceased estate available for distribution in the FP proceeding is not merely a type of consideration which the court can dispense with [191] . Leaving aside very large estates (where it may not be essential to determine precisely how large the estate is), ordinarily no proper determination of a family provision claim can be made unless and until the parties placed before the Court, satisfactory evidence of the funds available for distribution from the estate after payment of funeral testamentary and administration expenses, debts and costs [192] .
Thus, whilst in terms of ultimate relief, the debt issue and the estate size issue in the respective proceedings differ in degree, and in that respect the findings in the debt issue might be said to not have a direct affect on Trevor’s ultimate rights or liabilities, there is no doubt that a finding in the D&WC proceeding will have at least a practical impact upon the FP proceeding.
Ordinarily, the proper parties to proceedings in respect of a disputed loan are the parties to the loan [193] . However, that is not conclusive of the matter. As indicated above, it does not matter that the third party is not a party to the money advances as between Miriam and/or her estate and Catherine and/or her estate and Grace [194] . Further, Mr Li’s submission that there is a dichotomy between "legal" interests and "commercial" or “economic” interests has been said not to be helpful in determining directness of fact or necessity [195] . Mr Li acknowledged that if the Court enters judgment in these proceedings against Catherine’s estate “that may shape the factual matrix in which the amount of [Trevor’s] award is assessed” [196] .
On the other hand, I accept that if Trevor were not joined, the debt issue could be ‘effectively’ determined between the existing parties to the D&WC proceeding, at least in the sense that both Catherine’s estate in Miriam’s estate would be bound by a finding. The difficulty is that Trevor, if not a party, would not be bound. I address this under the residual discretion findings below.
On one view, the debt issue has a direct effect on Trevor’s interests. On that basis, Trevor is regarded as a party who is necessary to the determination of the debt issue in the D&WC proceeding.
However, I accept that the question is vexed and I prefer not to base my determination regarding joinder on a finding that Trevor is a “necessary” party to the D&WC proceeding.
Overall, I consider that there are various considerations which favour a finding that under the residual discretion in UCPR r 6.19 that Trevor should be joined to the D&WC proceeding.
First, there is common question between the proceedings regarding the size of Catherine’s estate which is not merely a collateral issue but is a [highly] material issue which will bear upon the ultimate findings in each preceding. The debt amount has been the subject of varying claims ranging from $460,000 to $1.5 million. Whether the amounts sought to be recovered, now stated to be $484,144.39 and $114,683.22 plus interest, is the final claim remains to be seen.
Secondly, neither the debt issue in the D&WC proceeding nor the estate size issue in the FP proceeding is likely to be short. The debt issue bears a degree of complication with the Pitcher Partners report only dealing with part of the transactions. Thus far, it seems that the claims for relief only relate to the single credit card and not to other credit card or cash advances. However, even if it remains that way, that is still a very significant issue which is factually complicated and I consider will likely consume much time and expense in the litigation. Further, in my view, the time and expense on the debt issue is likely to exceed that which is spent on the limitation issue and the hotchpot construction issue.
Thirdly, Mr Turnbull accepted that on the assumption that the D&WC proceeding is determined prior to the FP proceeding and the size of Catherine’s estate is a disputed issue, if Trevor were not joined to that proceeding that he would not be bound by a judgment in it and would be at liberty to challenge in the FP proceeding the amount that is said to constitute Catherine’s estate [197] .
Fourthly, whilst technically it may be said that the D&WC proceeding is properly constituted in the sense that Alastair as executor is the appropriate representative of Miriam’s estate, Grace as executrix of Catherine’s estate and in her own right is joined as a defendant, there is some tension between Grace’s position in respect of the claims personally against her and against Catherine’s estate. Whether that tension amounts to a conflict in a practical sense is debatable. It is understandable that Grace contends that there is no practical conflict because she is entitled to the entirety of Catherine’s estate. However, Mr Fernon SC contends that Grace is conflicted (or at least potentially so) and I accept that it cannot be unequivocally said at this stage that there is no lingering tension or conflict in Grace’s position given the lack of absolute certainty regarding the amounts to be ultimately pursued as debts against Catherine and Grace, the evidence contextualising the payments is not complete and it may be expected that Grace seeks to minimise the claim by Trevor in the FP proceeding.
Fifthly, if Trevor were not joined to the D&WC proceeding, I am not satisfied that he will per se lose the ability to dispute the value of Catherine's estate in the FP proceeding. Mr Turnbull acknowledged as much. However, nonetheless, I consider the prospect that there may be differing findings regarding the value of Catherine's estate potentially as between the two proceedings which is a matter to be avoided if possible. Perhaps more significantly, if there is a finding in relation to the size of Catherine's estate in respect of the FP proceeding, for example, as to a greater amount than any judgment debt in the D&WC proceeding, Grace may well be in some real difficulty having regard to differing findings in the proceedings.
Mr Li (as abovementioned) advanced the proposition that there might be conditions both as to “limited participation” and “costs” as to Trevor’s joinder if he were to be joined.
Mr Li did not identify what “limited participation” might be appropriate in the case of Trevor being joined to this D&WC proceeding. I do not consider that there should be some constraint placed upon his joinder particularly if one of the various purposes of the joinder is that he is to be bound into the outcome on the proceedings in particular on the debt issue.
I reject the submission that a condition of a joinder should be that Trevor bear his own costs of the joinder. Such a prospective costs order would be against the interests of justice. It seems to me sufficient to simply note that his joinder would be on the basis that it is at his own risk as to costs which then leaves to the judge who determines the proceeding to assess costs at or consequent upon the final determination in a better informed context, than prevails at the moment.
Mr Li submitted that if a joint order were made, the “reason” for the joinder should be articulated “so that if circumstances change or if the intended purpose of the joinder fails to materialise”, Alistair would be at liberty to take steps to seek to “unjoin” Trevor from the D&WC proceeding. The purpose of Trevor’s joinder is not singular but encompasses all the above purposes articulated in my reasons.
Lastly, counsel respectively contended that the joinder application should be granted or dismissed with costs [205] . I have considered those submissions. Unless the court orders otherwise, the costs of any application or other step in any proceedings, including: (a) costs that are reserved, and (b) costs in respect of any such application or step in respect of which no order as to costs is made, are to be paid and otherwise dealt with in the same way as the general costs of the proceedings [206] .
Overall I consider that the appropriate order is that the costs of the application should be reserved, to the intent that there is an opportunity for the trial judge to deal with costs in a context in which such a judge is better informed regarding the ultimate merits of the matter in light of the progression and outcome of the proceedings.
The orders of the Court are – the Court
Orders, pursuant to the residual discretion in UCPR r 6.19, that Trevor be joined as second defendant to this proceeding (2025/00273947).
Orders that the costs of and incidental to Trevor’s notice of motion filed on 14 August 2025 be reserved.
Note that the joinder is not on the basis that Trevor has any prima facie right or entitlement as to costs but rather, as with each of Alistair and Grace, will be at his own risk as to costs in the proceedings.
**********
Herman Melville, Moby Dick; or The Whale (Harper & Brothers, 1851) 315.
Trevor's affidavit 15 December 2023 in FP proceedings at [61] (untested).
Ibid at [58] (untested).
Ibid at [19], [20], [38], [57]-[609] (untested).
CB 177.
Grace has put in issue Trevor status as Catherine's de facto spouse (CB 133, T1, 8.40.43) and also eligibility on even membership of a household basis: T1, 8.49-9.17.
Mr Turnbull accepted that the size of Catherine’s estate is in issue in dispute or at least could be an issue in dispute T3, 4.21-4.27.
‘Limitation Act’.
CB 174.
CB 174-175.
CB 176-177.
CB 174.
CB 172.
CB 174.
CB 154[15], 177[13].
CB 177[14].
CB 177[15].
CB 134; AS1 [12]-[13].
CB 27[24]-28[27].
CB 28[28].
As I have previously referred to.
CB 148[7].
GS2 [10].
TS2 [5].
AS2 [4]-[6].
GS2 [11]-13].
TS2 [10]-[11].
AS2 [10].
AS2 [8], [11].
T2, 2.13-.16.
T2, 2.16-.38.
T2, 2.40-.49.
CB 30[36(a)]–[32(j)].
The spreadsheet appears over 47 pages printed in landscape form at CB 79-126 (32 pages printed in portrait format at CB 181-213).
CB 31[36](e).
CB 77.
Ibid.
See for example Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95; [2002] HCA 8 (Ermogenous).
T2, 3.16-.19.
CB 137[5]–[7].
CB 133–134.
CB 139.
CB 130.
CB 140; TS1 [36(j)i].
CB 152[18]–153[22].
CB 33[40].
CB 79.
CB 102.
T1, 7.39-.12.
DK [3].
DK [4].
T3, 2.8-.17.
DK [5]-[6].
(Presumably intended to be a reference to the financial management orders).
DK [7] citing CB 174.
TS1 [25].
TS1 [22], [23],CB 119–126.
T2, 2.13-.38.
TS1 [36(b)]; T1, 12.13-.24; 13.22-.27.
John Alexander’s Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1; [2010] HCA 19 (John Alexander’s Clubs) per French CJ, Gummow , Hayne , Heydon and Kiefel JJ at [153] citing Victoria v Sutton (1998) 195 CLR 291; [1998] HCA 56 (Victoria) per McHugh J at [77]; Ross v Lane Cove Council (2014) 86 NSWLR 34; [2014] NSWCA 50 (Ross) at [57]-[58].
Pegang Mining Co Ltd v Choong Sam [1969] 2 MLJ 52 (Pegang) at 55-56 per Lord Diplock.
John Alexander’s Clubs Pty Ltd at [139]; see also John Cooke & Co Pty Ltd v Commonwealth (1922) 31 CLR 394 at per Knox CJ, Gavan Duffy and Starke JJ at 411].
Daracon Engineering Pty Ltd v Kelsall [2025] NSWCA 189 at [24] citing F Calvert, A Treatise Upon the Law Respecting Parties to Suits in Equity (2nd ed, 1847, W Benning) at 2-3 and Wong v Silkfield Pty Ltd (1999) 199 CLR 255; [1999] HCA 48 at [13].
Ross at [61].
Supreme Court Act 1970 (NSW) (SCA) s 63.
Civil Procedure Act 2005 (NSW) (CPA) s 90; UCPR r 36.1.
At [135].
UCPR r 6.23; Ross at [61].
John Alexander’s Clubs at [137].
Victoria at [77].
Boyd v Thorn (2017) 96 NSWLR 390; [2017] NSWCA 210 per Leeming JA at [87]; Burton v Babb [2020] NSWCA 331 (Burton) per Payne JA and Simpson AJA at [18].
Non-exhaustively see UCPR r 6.19-6.32.
Qantas Airways Ltd v AF Liddle Pty Ltd [1981] 2 NSWLR 34 (Qantas) per Glass JA at 39D.
Supreme Court Rules 1970 (NSW) (SCR) Pt 12 r 1A, Sch J Pt1 (Succession Act 2006) subcl 1(a) and (b); Little v Little [2026] NSWSC 36 at [41]-[43].
Bogan v Estate of Peter John Smedley (Dec'd) [2025] HCA 7; (2025) 422 ALR 94 (Bogan) per Gageler CJ, Gordon, Gleeson, Jagot and Beech-Jones JJ at [63]-[65].
CPA s 3 definition of "originating process".
AS1 [18]-[19] citing Walker v Commonwealth Trading Bank of Australia (1985) 3 NSWLR 496 (Walker) at 503 (applied in Coastal Service Centres Pty Ltd v United Petroleum Pty Ltd [2023] NSWSC 326 (Coastal) at [49] per Williams J).
Which relevantly provided that “Two or more persons may be joined as plaintiffs or defendants in any proceedings: .. (b) where the Court gives leave so to do”.
At 52,165-52,166.
Principally at 397B-E, but also at 402G.
See at [25]-[26].
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 (Aon) per Frech J at [26] citing Sali v SPC Ltd [1993] HCA 47 (Sali); (1993) 116 ALR 625 at 629 per Brennan, Deane and McHugh JJ; see also Gummow, Hayne, Crennan , Kiefel and Bell JJ at [93]-[95]. In Aon whilst the case management decision involved a proposed amendment with potential delay, in the context of the Court Procedures Rules 2006 (ACT), there is no reason why the principle ought not hold good in relation to other types of case management decisions.
Aon per French J at [26] citing Sali at 629.
At 503A-B.
Payne at 619.
See Barwick CJ at 613,615, Stephen J at 615; Mason J at 615-618.
AQC Dartbrook Management Pty Ltd v Minister for Planning and Public Spaces (2021) 105 NSWLR 152; [2021] NSWCA 112 (Dartbrook) per Meagher and Leeming JJA at [14].
Re Great Eastern Cleaning Services Pty Ltd [1978] 2 NSWLR 278 (GECS) per Needham J at 281E-F.
GECS at 281D-E.
Ritchie’s Uniform Civil Procedure NSW (LexisNexis) (Ritchie’s) at [6.24.5].
Burton at [24] citing News Ltd v Australian Rugby Football League Limited (1996) 64 FCR 410; [1996] FCA 870 (Super League) at 524-526.
Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40 per Mason CJ, Deane and McHugh JJ at 209; Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66; [2008] HCA 42 at [55].
Macquarie Dictionary, (online at 17 February 2026) ‘ought’.
Macquarie Dictionary, (online at 17 February 2026) ‘necessary’.
Dartbrook per Meagher and Leeming JJA at [14].
Burton per Payne JA and Simpson AJA at [30] –[32] and [42]; Dartbrook at [14] –[15] (Meagher and Leeming JJA) and Preston CJ of LEC at [168].
John Alexander’s Clubs at [131].
Dartbrook per Preston CJ of LEC at [187].
Ibid at [189].
John Alexander’s Clubs at [131].
Ross at [52], [54], [57].
Ross at [60].
Ross at [57].
John Alexander’s Clubs at [132] citing the Super League at 524-525.
Super League at 524G-525A.
Super League at 525A-B.
Super League at 525B-C.
Super League at 525D.
Super League at 525D-E.
Pegang at 56 per Lord Diplock: Super League at 524B-E; Ross per Leeming JA at [52] (Meagher JA at [1] and Tobias AJA at [86] agreeing).
Ritchie’s at [6.24.20] citing Gurtner v Circuit [1968] 2 QB 587 (see Diplock LJ at 602); Pegang at 56 per Lord Diplock.
Vandervell per Lord Diplock at 944; see also Walker per Needham J at 503B.
Walker per Needham J at 502F-G.
GECS (and specifically per Needham J at 281A-B).
Dartbrook per Preston CJ of LEC at [188] citing GECS at 281B-E.
Re Multi-Tech Services Pty Ltd (in liq) (1982) 30 SASR 218 (Multi-Tech Services) per Jacobs J at 221.
Qantas per Glass JA at 38D-E.
Davidovic v Vesuvius Australia Pty Ltd (No 3) [2017] NSWSC 76 at [30]-36] (especially [35]-[36]). See also Simic v Bailey [2024] NSWSC 1076; Burrell Solicitors Pty Limited (In Liquidation) v Reavill Farm Pty Limited (No 2) [2019] NSWSC 67.
Bogan at [63]-[65].
Interpretation Act 1987 (NSW) s 35(2).
New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 6 April 2005 at 15,115-15,120.
Ibid at 15,116.
Ibid at 15,118.
Ibid.
Ibid at 15,116.
Ibid.
New South Wales Legislative Council, Parliamentary Debates (Hansard), 24 May 2005 (the Honourable Henry Tsang, Parliamentary Secretary) at 15,935 (generally 15,394-15,938).
New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 3 May 2005 at 15,449-15,456. New South Wales Legislative Council, Parliamentary Debates (Hansard), 24 May 2005 at 15,938-15,940.
Attorney General’s Department of NSW, An Introduction to Civil Procedure Act 2005 Uniform Civil Procedure Rules 2005, Report (2005) page 25 (accessible at https://dcj.nsw.gov.au/legal-and-justice/laws-and-legislation/policy-reform-and-legislation/publications/reports-and-papers.html).
Tahmoor Coal Pty Ltd v Visser [2022] NSWCA 35 at [16]; Attorney General for New South Wales v Clark; Clark v State of New South Wales [2022] NSWSC 361 at [7]; Qasim v Bird [2022] NSWSC 258 at [46]; Hewit v NSW State Coroner [2019] NSWSC 1401 at [9]; National Australia Bank Limited v Barker [2019] NSWSC 1001 at [1], [14], [36]; Secretary, Dept of Social Services and Commonwealth v Cassaniti [2015] NSWSC 1586 at [35]; In the Matter of Raejoe Pty Ltd (Receiver and Manager Appointed) (Administrators Appointed) As Trustee for 'The Coe Family Trust' [2012] NSWSC 1457 at [4]. The Court of Appeal's decision in Burton does not suggest otherwise. See also Halsbury's Laws of Australia (LexisNexis) [395-5665] fn3.
NSW Civil Procedure (Westlaw Australia) at UCPR [r6.27.20]-[r6.27.60]. I may be noted that Ritchie’s does not contain any material annotations on the rule at [6.27.5] (other than referencing the notes to UCPR r 6.22).
Westpac Banking Corporation: Application of Zheng [2023] NSWSC 147.
Lorebray Pty Ltd v Liddy [2022] NSWSC 1633.
Patsalis v Local Court of NSW [2022] NSWSC 159.
Ross at [20].
Per French CJ, Gummow, Hayne, Crennan and Kiefel JJ at [2].
Ibid at [3]
At [35].
At [32].
At [19].
Dartbrook per Meagher and Leeming JJA at [19].
GS1 [2]-[3], [5],[6].
TS1 [36].
("all rights of relief… same transaction or series of transactions").
T1, 16.27–16.36.
TS1 [27]–[28] (John Alexander's Clubs in particular at [132], in turn quoting from Super League at [523]–[525]). Mr Fernon SC referenced Roadshow Films at [2]-[3]: TS1 [29].
TS1 [37]–[38].
TS1 [30]; T1, 11.37-.42.
TS1 [17].
TS1 [30]–[31].
TS1 [17], [36(e)].
TS1 [32]–[34].
T3, 5.7-5.19.
TS1 [36(h)] citing Boikov at [17]–[18] and Bishop at 314.
T3, 5.19-5.22.
TS1 [36(j)iii].
AS1 [18]-[19].
AS1 [21] citing Burton at [30] –[32] and [42] (Payne JA and Simpson AJA); Dartbrook at [14]–[15] (Meagher and Leeming JJA) and [176]–[179] (Preston CJ of LEC).
AS1 [33].
AS1 [22] citing Coastal at [53] per Williams J.
AS1 [23]-[24] citing John Alexander’s Clubs at [131] and Pegang at 55-56.
AS1 [25] citing as an example China First Pty Ltd v Mount Isa Mines Pty Ltd [2019] 3 Qd R 173; [2018] QCA 350 especially at [60] per Gotterson JA (with whom Fraser and McMurdo JJA agreed). See also T2, 4.16-.18.
Ibid.
AS1 [26]-[29] citing Coastal in particular at [82]-[83].
AS1 [2]-[3]; T2, 4.5.
AS1 [30]; T2, 4.5.
AS1 [31] referencing Succession Act s 60(2)(c).
AS1 [39].
AS1 [32] citing Coastal at [90] and McCrohon v Harith [2010] Aust Torts Reports 82–056; [2010] NSWCA 67 at [54] –[56] (McColl JA, Campbell JA and Handley AJA agreeing).
AS1 [31]-[33].
T3, 5.29-5.33; 6.36-6.37.
AS1 [4]-[6]; T2, 4.16.18; T3, 5.37-5.43.
AS1 [16] citing Alistair's affidavit (CB 146-149).
AS1 [35].
Ibid.
AS1 [36]; T2, 4.34-5.2.
AS1 [37]; T2, 5.14-.21.
AS1 [38].
T2, 4.26-.30.
T3, 3.1-.13 (citing as an example TG [15(b)(III)]).
T3, 5.26.
T3, 6.38-.41.
T3, 5.45-6.3; 6.37-.41.
T3, 7.14-.17.
T3, 7.23-.29.
T3, 6.45-7.4.
T3, 7.33-7.50.
See e.g. Quek v Beggs (1990) 5 BPR 11,761 at 11,781 per McLelland J (as his Honour then was); Porte v Couso (Supreme Court (NSW), McLelland J, 16 March 1992, unrep: BC9202004) at 2; Cetojevic v Cetojevic [2006] NSWSC 431 at [55] per Campbell J.
AS1 [4]-[5].
See e.g. Liprini v Liprini [2008] NSWSC 423.
See e.g. Succession Act 2006 (NSW) s 60(2)(c); SCR Schedule J – Succession Act; Practice Note SC Eq 7 [18].
King v Foster [1995] NSWCA 240 per Sheller JA at [5].
See e.g. Satchithanantham v NAB [2008] NSWSC 1097 per White J at [66].
Super League at 525D-E.
Pegang at 56 per Lord Diplock: Super League at 524B-E; Ross per Leeming JA at [52] (Meagher JA at [1] and Tobias AJA at [86] agreeing).
AS1 [31].
T3, 3.42-4.6.
AS1 [31]-[33].
Ermogenous per Gaudron , McHugh , Hayne and Callinan JJ at [24]-[28].
Filby v TEG Live Pty Ltd [2022] NSWSC 1280 per Slattery J at [31].
TS1 [36(j)ii].
TS1 [36(j)i] citing CB 32–33 and 142–144.
CB 129.
TS1 [36(j)ii].
TS1 [39]; AS1 [40]; GS1 [7].
UCPR r 42.7(1).
[110]: “Aiken J” amended to “Aickin J” [127]: “the termination” amended to “a determination”
Hunt
Archer [2026] NSWSC 95
(2009) 239 CLR 175
(1990) 25 FCR 311
(2025) 422 ALR 94
(2017) 96 NSWLR 390
(2002) 55 NSWLR 64
(2002) 209 CLR 95
(1992) 29 NSWLR 382
(1942) 65 CLR 473
(2010) 241 CLR 1
(1922) 31 CLR 394
(1990) 170 CLR 534
(2008) 237 CLR 66
(1996) 64 FCR 410
(1994) 181 CLR 404
(1980) 145 CLR 609
(1982) 30 SASR 218
(2011) 248 CLR 37
(2014) 86 NSWLR 34
(1994) 181 CLR 201
(1998) 195 CLR 291
(1985) 3 NSWLR 496
(1999) 199 CLR 255
(2001) 109 FCR 215
(1993) 116 ALR 625
(2021) 105 NSWLR 152
Broadly speaking, in the FP proceedings there are disputed issues, namely as to
Trevor’s eligibility [6] - as a de facto spouse or as a dependent member of a household (‘eligibility issue’);
the nature and extent of Catherine’s estate [7] (which without attempting to be precise I will simply describe as being the ‘estate size issue’);
whether Trevor has been left with inadequate provision (‘provision inadequacy issue’) and
if so, what (if) any provision ought to be made in his favour (‘relief issue’).
If Trevor is found to be eligible only as a dependent member of a household of which Catherine was a member there would also be a question as to whether there are factors warranting the making of his claim.
Broadly speaking, in the D&WC proceeding, there is a disputed issue as to
the nature and extent of advances as between Miriam and Catherine and/or Grace (again without attempting to be precise I will describe as the ‘debt issue’);
the operation of any defence pursuant to the Limitation Act 1969 (NSW) [8] (‘limitation issue’); and
the true construction and operation of clause 4 of the deceased’s Will (‘hotchpot construction issue’).
For present purposes it suffices to note that Trevor contends that for the purposes of his FP proceeding, he has an interest via the estate size issue which will be impacted by the finding on the debt issue in this D&WC proceeding to which he seeks to be joined.
Trevor’s joinder is staunchly opposed by Alistair. Grace also opposes his joinder.
I have determined that Trevor should be joined to the D&WC proceeding. Alistair’s counsel requested reasons for judgment. My reasons are as follows.
Consequent upon Catherine’s death on 16 March 2023, probate of her Will was granted on 2 November 2023 to Grace & Alistair, the named executors. Catherine left her estate to Grace “when she attains the age of twenty-five (25) years”. There is no dispute that Grace is, pursuant to Catherine’s will, entitled to the whole of Catherine’s estate.
On 18 December 2023, Trevor commenced the FP proceeding against Grace and Alistair, the then named executors of Catherine’s estate.
On or about 4 October 2024, following Miriam’s death, Alistair sought probate of Miriam’s Will dated 19 January 2011.
Clause 3 of Miriam’s Will gave her estate on trust for sale and conversion into money, to pay her debts funeral and testamentary expenses and to hold the balance of her residuary estate on trust for such of Alistair, Alexandria and Catherine as survived her and if more than one, in equal shares as tenants in common. Grace became entitled under a form of gift over in the event that any of Miriam’s children predeceased her leaving a child who “survive and attain the age of 25 years”.
Clause 4 of Miriam’s Will is in the following terms
On 14 August 2025, Mr McDonald stated that since the commencement of the FP proceeding, Trevor has been advised 7 different figures for the alleged debt ranging from $460,000 to $1.5 million [46] .
In respect of the credit card indebtedness, it appears the first advancement of monies from Miriam to Catherine occurred on 27 June 2014 [47] . The balance 6 years prior to the commencement of the D&WC proceeding was $442,911.05 [48] .
The amounts claimed in the D&WC proceeding against Grace in her capacity as executor of Catherine’s estate ($484,144.39) but also personally ($114,683.22) were understood by Mr Fernon SC to not contain any interest component [49] .
the test is not helpfully expressed by a dichotomy between whether the party’s "legal" interests are affected as distinct from its "commercial" interests [110] ; and
to achieve the purposes underlying the principle calls for a flexibility of approach which makes it difficult and undesirable to attempt to lay down an exhaustive formulation as to when joinder is “necessary” [111] .
However, caselaw on joinder is not uniform on the point, even as to the same judge. In Vandervell Trustees Ltd v White [1971] AC 912 (Vandervell), Lord Diplock stated that a party to an action must be a person who, in that action, claims some relief against another party to the action or be the party against whom such relief is claimed and there is no jurisdiction to add as a party to an existing action, a person by and against whom no relief which the court has jurisdiction to grant can be claimed [112] . Yet, it has been said that the test posed by Lord Diplock in Vandervell is inconsistent with his Lordship’s earlier comments in Pegang [113] .
The mere absence of relief by or against the party proposed to be joined is not conclusive against joinder [114] . Thus, cases in the second “assist the court” category include where the person seeking joinder “is in a position to put before the Court matters which could be relevant to the exercise of discretion”, on the matter in dispute, and “there is no one else who has been shown to have any interest in putting forward such matter” [115] . Joinder has been permitted to enable the third parties to be bound by a determination (guarantors of a debt) [116] (though it may be noted that Multi-Tech Services was not followed by Needham J in Walker).
The phrase “all matters in dispute in the proceedings” is not limited to matters that arise on the existing pleadings. It also includes “subjacent” (i.e. underlying) matters. It thus extends to the determination of questions about the liability of an alternative potential party [117] .
Sixthly, joinder of Trevor to the D&WC proceeding would not merely avoid the potential for conflicting findings in the proceedings in respect of the size of Catherine’s estate, but bind Trevor to a determination as to the debt issue in respect of Catherine’s estate so that that is not re-litigated in the FP proceeding.
Seventhly, I reject (for the reasons earlier stated) the submission of Mr Li that the residual discretion element of r 6.19 only permits joinder by the moving party on the relevant originating process with some relief sought by the moving party against the proposed defendant.
Eighthly, Mr Li’s submission that if Trevor were joined he may influence [198] or shape the outcome in the matter has an unstated premise. For it to be a matter counting against joinder, the premise is that such influence or shaping would either be unjust to Alastair and or Grace or otherwise not conducive to the proper determination of the D&WC proceeding. If that be Mr Li’s concern, I am not convinced that that premise is made out or even likely. Two matters bear significance – context and evidence.
Family transactions are notoriously the subject of deep dispute as to whether payments are gifts, loans or otherwise. Context is important. The modern approach to characterisation of payments doubts the utility of the language of presumption and invites consideration of onus of proof and evidence as to the relationship of the parties to another and other surrounding circumstances informing context [199] .
Ordinarily, courts prefer to act upon the best evidence available to determine issues [200] . The steps regarding adducing evidence as to payments and context is in nascent stages. Grace has not identified any particular detail evidence that she is able to give on the debt claim. Alistair, by his own admission has no “personal knowledge of any, or at least substantially all, of the transactions in which [Catherine] obtained a financial benefit ...”. However, on the other hand Mr Li acknowledges that Trevor will be able to give ‘relevant’ evidence on the debt issue. Mr Li did not elaborate as to his submission that such evidence has doubtful or quite low probative value and not shown to be compelling to be dispositive of the case (noting that he did not seek to cross-examine Trevor). I do not regard a provisional contention about the weight of such evidence as Trevor is able to give as a compelling basis to decline joinder. I consider that the fact that Trevor (admittedly) can give relevant evidence favours his joinder rather than counts against it.
Ninthly, I do not regard the submission that Grace could potentially call Trevor as a witness in the D&WC proceeding as being sufficient basis to exercise the discretion against joinder. First, thus far, neither of the parties to the D&WC proceeding have sought to adduce evidence from Trevor and it seems unlikely in light of the opposition to his joinder to the proceeding that either will do so. Secondly, if evidence was adduced from him, in the absence of him being a party to the proceedings, Mr Turnbull acknowledged he would still not be bound by the outcome.
Tenthly, I do not accept that joinder would necessarily result in Trevor inappropriately engaging “in a roving commission as to the financial relationship” between Miriam’s estate and Catherine’s estate. Nor do I accept that there is basis for thinking that Trevor’s involvement in the D&WC proceeding would be antithetical to those proceedings or otherwise be inconsistent with the CPA s56 overriding purpose. It must be remembered that overall there were two proceedings before the Court. It is artificial to consider the application only by reference to the D&WC proceeding. The impact of non-joinder upon the FP proceeding and on the call uponof the court’s resources and time is relevant. Under modern principles of case management, the Court is entitled to consider case management more broadly on the Court’s resources and the competing claims by litigants in other cases awaiting hearing in the court as well as the interests of the parties - including, relevantly here the FP proceeding. This is one of the significant points made by Wilcox J in Bishop.
Eleventhly, in a sense, there are already a multiplicity of proceedings. In that respect, joinder will not reduce the number of proceedings. However, the salient point is that Trevor’s joinder to the D&WC proceeding will very arguably ensure the most efficient use of resources for all parties. There is no evidence that Trevor’s joinder will result in excess resources being spent [201] . Significant documents relating to the alleged debt have been sought and produced in the FP proceeding [202] .
Twelfthly, there is no current indication of the exact length of the FP proceeding. However there is no reason to think that it is likely to be brief. On 12 November 2024, Mr Zelinka on behalf of Trevor in corresponding about the FP proceedings estimated that the matter would take three days to be heard, noting that there were approximately 14 witnesses [203] . In balancing the interests of all parties, I am not persuaded that there is any untoward unfairness or unjustness to Alistair and Grace in a joinder order, at least not such as would in any material significant sense outweigh unfairness or injustice to Trevor. It seems to me that if Trevor were not joined to the D&WC proceeding, his family provision claim would be (or might well be) delayed until the outcome of the other proceeding was known. There would be further expense in him effectively relitigating in the FP proceeding the estate size issue having regard to advances as between Miriam and Catherine or their respective estates.
Thirteenthly, I am content to proceed on the basis as submitted by Mr Li that no arrangement between Trevor and Grace for Grace to receive an amount greater than her legitimate entitlement under Miriam’s Will irrespective of the recovery made by Miriam’s estate from Catherine’s estate. However, that fact per se does not persuade me that joinder is inappropriate.
Lastly, Lindsay J in his orders of 4 July 2025 expressed an intention that the FP proceeding and the (then envisaged) D&WC proceeding would be case managed and heard together or alternatively heard sequentially [204] . An order for joinder is consistent with what was then and now remains a case management decision in respect of both proceedings.
Overall, I am persuaded that joinder of Trevor to the D&WC proceeding is the most conducive course to a just resolution of the disputes between the respective parties in each proceeding having regard to the desirability of limiting, so far as practicable, the costs and delay of the litigation, efficient use of the Court's resources having regard to the commonality of the debt issue and estate size issues raised in the respective proceedings, and the Court's ability to case manage so as to minimise the disadvantages. Further, it is consistent with the application of the overriding purpose of civil litigation in respect of both proceedings.