Caldar and The Estate of the Late Mrs Rachel Isobel Gittoes v Public Trustee of New South Wales [2005] NSWCA 166

New South Wales Court of Appeal

CITATION: Caldar and The Estate of the Late Mrs Rachel Isobel Gittoes v Public Trustee of New South Wales [2005] NSWCA 166

HEARING DATE(S): 11 May 2005

JUDGMENT DATE: 11 May 2005

JUDGMENT OF: Handley JA at 1; Bryson JA at 16; Brownie AJA at 17

DECISION: 1. Summons of 4 January 2005 dismissed with costs.; 2. Notice of motion of 4 April 2005 dismissed with costs.

CATCHWORDS: PRACTICE AND PROCEDURE - abuse of process of court - no question of principle

Supreme Court Act 1970 LEGISLATION CITED: Supreme Court Rules 1970

Russell Caldar and The Estate of the Late Mrs Rachel Isobel Gittoes (Claimant) PARTIES: Public Trustee of New South Wales (Opponent)

FILE NUMBER(S): CA 41204/04 and 40141/05

in person (Claimant) COUNSEL: I Rugless (Opponent)

not applicable (Claimant) SOLICITORS: Clinch Neville Long Lawyers (Opponent)

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): CA 40141/05 and CL 13973/04

LOWER COURT JUDICIAL OFFICER: Tobias JA and Hidden J

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 41204/04 CA 40141/05

HANDLEY JA BRYSON JA BROWNIE AJA

11 MAY 2005 RUSSELL CALDAR and THE ESTATE OF THE LATE MRS RACHEL ISOBEL GITTOES v PUBLIC TRUSTEE OF NEW SOUTH WALES Judgment 1 HANDLEY JA: The Court has before it a summons by Mr Russell Caldar dated 14 January 2005 seeking leave to appeal from an interlocutory order of Hidden J of 13 December 2004. Hidden J refused to stay execution of the writ of possession over the property at 36 Arthur Street, Dee Why. 2 The Court also has before it a notice of motion dated 4 April 2005 which seeks under s 46(4) of the Supreme Court Act 1970 to discharge or vary orders made by Tobias J as a single judge of this Court on 19 January 2005 and 14 March 2005 refusing to stay execution of the writ of possession. 3 On 17 March 2005 the writ of possession was executed and possession of the property was delivered to the Public Trustee. Thereafter, it appears on 11 April 2005, Mr Caldar re-entered the property. 4 On 22 April White J made orders under s 84(2) of the Supreme Court Act which restrained Mr Caldar from continuing any legal proceedings against the Public Trustee without the leave of the Court or making any application in any legal proceedings against the Public Trustee without the leave of the Court.