New South Wales Court of Appeal CITATION : BAR-MORDECAI v HILLSTON & ORS [2000] NSWCA 120 FILE NUMBER(S) : CA 40553/99 HEARING DATE(S) : 9 December 1999, 1 February 2000 JUDGMENT DATE : 16 May 2000 Michael Jacob Bar-Mordecai - Claimant PARTIES : Alan David James Hillston - First Opponent Sue May Florence Choo and Robert John Cruikshanks - Second Opponents JUDGMENT OF : Sheller JA; Stein JA; Giles JA LOWER COURT JURISDICTION : Supreme Court - Equity Division LOWER COURT 3240/98 FILE NUMBER(S) : LOWER COURT Master McLaughlin JUDICIAL OFFICER : COUNSEL : M J Bar-Mordecai - Claimant - In Person J B Whittle/B J Burke - Opponents SOLICITORS : Claimant - In person Shaw McDonald - Opponents CATCHWORDS : PRACTICE & PROCEDURE - costs - where summons for leave to appeal filed incorrectly in Court of Appeal and claimant should have known appeal lay to single Judge in Equity - Summons dismissed as incompetent - ND LEGISLATION CITED : Conveyancing Act 1919 Supreme Court Act 1970 CASES CITED: N/A DECISION : Application for leave to appeal is dismissed as incompetent; Claimant to pay costs of opponents incurred after 20 August 1999. THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40553/99 ED 3240/98 SHELLER JA STEIN JA GILES JA Tuesday, 16 May 2000 BAR-MORDECAI v HILLSTON & ORS JUDGMENT 1 THE COURT: On 9 December 1999 the Court dismissed as incompetent this summons filed by the claimant, Dr Bar-Mordecai, on 26 July 1999, for leave to appeal. Left outstanding was the question of costs. The parties were given the opportunity to file further evidence. The matter was then stood over for directions before Sheller JA on 1 February 2000. By that date the opponents had filed three affidavits, two by Mr Courtenay of 10 January and 13 January 2000 and one by Mr Hart of 13 January 2000. On 1 February these affidavits were taken as read. The claimant took no objection to the affidavits except on the general ground of relevance. Sheller JA directed that any submissions that the opponents wished to put in relation to the question of costs should be made in writing to be filed and served on the claimant on or before 11 February 2000 and that any further submissions that the claimant wish to make should be filed and served on the opponents on or before 25 February 2000. The intent was that the Court would consider the evidentiary material and the submissions put at the same time as it dealt with the main appeal. The claimant did not file any affidavits. Both the opponents and the claimant filed written submissions. 2 The application for leave to appeal was from a decision of Master McLaughlin of 16 April 1999 when the Master appointed trustees for sale of the property known as 30 Eastbourne Avenue, Clovelly pursuant to s66G of the Conveyancing Act 1919. At the same time the Master dismissed the claimant's motion that the proceedings for the appointment of trustees for sale be stayed. 3 In his affidavit of 13 January 2000, Mr Courtenay said that having re-examined his file and the documents and correspondence referred to in his affidavit that he believed that as of 19 July 1999, a week before the claimant filed his application for leave to appeal, "…all parties to this dispute were of the view the appropriate procedure was for an application for leave to appeal to be made to the Court of Appeal so as to allow an appeal from the decision of the Master. Any such confusion as to procedure was removed and rectified by the time that my clients, as opponents, filed their response to the Summons indicating that there was no jurisdiction." 4 In their response to the summons, which was filed on 20 August 1999, under the heading "Reasons why leave should not be granted" the opponents submitted "that the claimant has no right under either the Supreme Court Act or the Rules to seek leave to appeal to the Court of Appeal. If he has a right to seek leave to appeal it is to a single judge of the equity division." The response then quoted ss104 and 118 of the Supreme Court Act 1970 and went on to explain in some detail why there was no power in this Court to grant leave to appeal from the decision of the Master and why therefore the application for leave was incompetent and should be dismissed. 5 On 24 August 1999 Master McLaughlin granted a stay of his order appointing trustees for sale to 31 August 1999 to allow the claimant to file a notice of appeal to a single Judge and further ordered that if this were done and such appeal prosecuted with due dispatch, that the order appointing trustees for sale be stayed until further order. On 27 August 1999 the claimant filed an appeal to a single Judge in the Equity Division from the decision of the Master's decision of 16 April 1999. On 30 August 1999 the opponents' solicitors wrote to the claimant referring to the notice of appeal to a single judge stating that it was incompetent. 6 However, no steps were taken to discontinue the application for leave to this Court, which this Court, in December, dismissed as incompetent. 7 On 6 October 1999 the solicitors for the opponents wrote to the claimant as follows: "At that time you advised that you would be willing to withdraw your appeal against the decision of Master McLaughlin, in Equity Division Proceedings No 3240 of 1998, which you are currently pressing in Equity Division Proceedings No 3240 of 1998. This withdrawal was conditional upon Mr Hillston and the Trustee not seeking to obtain possession of 30 Eastbourne Avenue, Clovelly, prior to the hearing of your appeal against the decision of Justice Einstein, which is currently listed for hearing in the New South Wales Court of Appeal on 6 December 1999, and 7 December 1999. We have had discussions with both our client and the Solicitor acting on behalf of the Trustees appointed for the sale of the property and attach draft Terms of Settlement for your approval. These Terms are self explanatory and we seek your advice as to whether they are acceptable." 8 This brought forward a counter offer in a letter from the claimant dated 14 October 1999. Nothing seems to have come of these interchanges. The application for leave to appeal to this Court remained alive and active until we dismissed it as incompetent. For present purposes, and taking account of remarks made in Court in the presence of the claimant before Stein JA on 12 July 1999 and Hodgson CJ in Eq on 5 August 1999, we accept that the claimant genuinely believed with some encouragement from others that his right to appeal from the Master's decision was to the Court of Appeal. However, on or shortly after 20 August 1999 a reading of the opponents' response should have indicated to the claimant that any appeal lay to a Judge in equity. The interchange about resolving the matter is not in this context significant. The claimant decided to prosecute the application for leave to appeal. That failed because it was incompetent and the claimant should pay the opponents' costs but only such costs as were incurred by the opponents after 20 August 1999. 9 Accordingly, the order of the Court will be that the application for leave to appeal is dismissed as incompetent. The claimant is to pay the costs of the opponents incurred after 20 August 1999. ***** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.