Telfer v Telfer

[2014] NSWCA 250

Court of Appeal (NSW)|2014-07-08|Before: Slattery J, Meagher JA

At a glance

AI case summary

Result

mixed. 1. Leave granted to amend summons for leave to appeal to substitute administrator as second respondent. 2. Applicant directed to file and serve amended summons. 3. Otherwise, applicant's notice of...

Key principles

The Court of Appeal has power under s 46(2)(b) of the Supreme Court Act 1970 (NSW) for a single Judge of Appeal to make orders for the joinder of parties to an appeal.
Where an administrator of an estate indicates no objection to being joined as a party to an appeal and the opposing party also has no objection, it is appropriate to grant leave...
A stay of administration of an estate granted to protect an appellant's position in the event of a successful appeal and subsequent costs order entitling indemnity from estate...
The fact that a respondent may have few assets other than her interest in the estate does not justify extending a stay of administration beyond the pronouncement of final orders.

Issues before the court

Whether leave should be granted to amend the summons for leave to appeal to substitute the administrator of the estate as second respondent

Plain English Summary

This case is a procedural decision about finalising a family estate dispute appeal. The Court had previously decided to allow Neil Telfer's appeal against costs orders, but needed the estate's administrator formally joined as a party. The Court granted leave to add the administrator, but refused Neil's other requests: to extend a freeze on the estate until his costs were paid (because the final decision didn't give him priority over other estate debts), to force his sister to hand over property documents (because he hadn't asked for this before and had no right to it), and to change the date of the original court orders (because the original date was actually correct). The Court also made sure that earlier costs orders made during the case wouldn't be disturbed by the final decision.

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Catchwords

PRACTICE AND PROCEDURE - joinder of the administrator of the estate to an appeal against costs orders

Judgment (8 paragraphs)

[1]

Judgment 1SACKVILLE AJA: On 13 June 2014, the Court delivered judgment in this appeal. The judgment recorded the orders the Court proposed to make in the proceedings (Proposed Orders), subject to steps being taken to join the administrator of the estate of the late Lyall Telfer: Telfer v Telfer [2014] NSWCA 186 (Principal Judgment) at [111]-[116]. The Court made the following orders: "1 Direct the applicant (Neil Telfer) to file and serve a motion seeking leave to join the administrator of the estate of Lyall Telfer (deceased) (Administrator) as a respondent to the appeal. 2 Direct the applicant to file and serve the motion and any supporting affidavit within fourteen days. 3 Direct that in addition to the motion and supporting affidavit, the applicant serve on the Administrator within fourteen days copies of this judgment and the appeal books." The matter was listed for directions on 8 July 2014. 2The applicant did not comply with the directions in a timely fashion. He filed a notice of motion and a supporting affidavit on 4 July 2014, but did not serve them on the respondent and the Administrator until very shortly before the directions hearing. 3The applicant's motion sought the following orders: "1 The Applicant have leave to amend the Summons for Leave to Appeal to substitute as Second Respondent, in place of the NSW Trustee and Guardian, Kenneth John Fairfax, in his capacity as administrator of the Estate of the late Lyall Telfer. 2 The order staying the administration of the Estate, made on 30 September 2013 by Meagher JA, be extended until payment by the Respondent of the Applicant's costs of the application for leave to appeal, and of the appeal, to the extent that such costs are ordered to be paid by the Court of Appeal. 3 The Respondent is to deliver within 7 days to the administrator, Kenneth John Fairfax, the original Certificate of Title for the Northmead property, together with a Withdrawal of Caveat form in registrable form to withdraw her caveat presently registered on title to the Northmead property. 4 That proposed Order 3 is to read: "Set aside Orders 5 and 6 made by the primary Judge on 21 June 2013." In lieu thereof, and excluding interlocutory costs orders made in the proceedings below, order that each party pay his or her own costs of the proceedings." 4At the directions hearing, Mr Rollinson appeared for the applicant and Mr Williams for the respondent (Ms Telfer). The Administrator (who is a solicitor) appeared in person.

[7]

Orders 15I make the following orders on the applicant's notice of motion: 1The applicant be granted leave to amend the summons for leave to appeal to substitute Kenneth John Fairfax, in his capacity as administrator of the Estate of the late Lyall Telfer, as second respondent in place of the NSW Trustee and Guardian. 2Direct the applicant to file and serve on each of the respondents an amended summons for leave to appeal. 3Otherwise dismiss the applicant's notice of motion filed on 4 July 2014. 4No order as to the costs of the motion. 16Final orders in the appeal will need to be made by the members of the Court who heard the appeal. I anticipate that the following orders will be made: 1Grant the applicant leave to appeal limited to the costs orders made by the primary Judge on 14 June 2013. 2Allow the appeal. 3Direct the applicant to file an amended notice of appeal naming Kenneth John Fairfax, in his capacity as administrator of the estate of the late Lyall Telfer, as the second respondent in place of the NSW Trustee and Guardian. 4Without prejudice to costs orders made in the proceedings prior to 13 August 2012, set aside Orders 5 and 6 made by the primary Judge on 14 June 2013. 5In lieu of Orders 5 and 6 made by the primary Judge on 14 June 2013 and without prejudice to costs orders made in the proceedings prior to 13 August 2012, order each party pay his or her costs of the proceedings. 6The first respondent pay 75 per cent of the appellant's costs of the appeal (including the application for leave to appeal, but excluding the costs of the applicant's motion to adduce further evidence). 7The first respondent, if otherwise qualified, have a certificate under the Suitors' Fund Act 1951 (NSW). 17I note that prior to the delivery of this judgment I was informed that the applicant had filed in the Registry an amended summons for leave to appeal and an amended notice of appeal. It is for that reason that the orders set out in [15] and the proposed orders set out in [16] do not include time limits for the filing of these documents.

Telfer v Telfer

At a glance

Result

Key principles

Issues before the court

Plain English Summary

Catchwords

Judgment (8 paragraphs)

Cited legislation

Parties

Legislation Cited (2)

Cases Cited (3)

AI Analysis