Ashton v Pratt [2013] NSWCA 400

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Ashton v Pratt [2013] NSWCA 400 Hearing dates: 18 November 2013 Decision date: 18 November 2013 Before: Bathurst CJ, McColl JA, Barrett JA Decision: 1 Order that Indra Heslop-Blochowiak and Xavier Connor Heslop-Kelly by their Tutor Liam Kelly be joined as second and third respondents to the proceedings. 2 Grant leave to the second and third respondents to file a Notice of Cross Appeal in the terms of the Draft Notice of Cross Appeal annexed to the submissions of the second and third respondents dated 13 November 2013. 3 Grant leave to the appellant to amend her notice of appeal to raise the matters referred to in paragraphs 4 and 7 of the Draft Notice of Cross Appeal of the second and third respondents. 4 Direct that on or before 25 November 2013 the second and third respondents:- (a) file a Statement of Facts and Contentions in support of the matters raised in the Draft Notice of Cross Appeal; and (b) file any evidence on which it seeks to rely in support of such statement. 5 Direct that on or before 9 December each of the appellant and the first respondent file:- (a) a reply to the Statement of Facts and Contentions referred to in paragraph 4(a); and (b) file any evidence in support of such reply. 6 Standover proceedings for directions on 12 December 2013 before McColl JA. 7 Reserve all questions of costs. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: PRACTICE - parties - joinder - where appellant sought to enforce promise by deceased to create trusts to benefit her children - children not parties at trial - where primary judge found appellant settled that claim among others during deceased's lifetime - where appellant sought to challenge that finding - whether children should be joined on appeal - whether children directly affected by relief sought - whether appellant could properly represent children as potential beneficiaries of trust - where children sought to argue that appellant to deceased's knowledge may have breached fiduciary duties as trustee of chose in action held in trust for children if settlement effective by releasing children's claims - Uniform Civil Procedure Rules 6.24, 51.4 Legislation Cited: Civil Procedure Act 2005 Conveyancing Act 1919 Supreme Court Act 1970 Uniform Civil Procedure Rules Cases Cited: Alexander v Perpetual Trustees WA Ltd [2004] HCA 7; (2004) 216 CLR 109 Coulls v Bagot's Executor & Trustee Co Ltd [1967] HCA 3; (1967) 119 CLR 460 Giumelli v Giumelli [1999] HCA 10; (1999) 196 CLR 101 Hammond v JP Morgan Trust Australia Ltd [2012] NSWCA 295 John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd [2010] HCA 19; (2010) 241 CLR 1 News Ltd v Australian Rugby Football League Ltd [1996] FCA 870; (1996) 64 FCR 410 Trident General Insurance Co Ltd v McNiece Bros Pty Ltd [1988] HCA 44; (1988) 165 CLR 107 White City Tennis Club Ltd v John Alexander's Clubs Pty Ltd (No 2) [2009] NSWCA 194; (2009) 261 ALR 112 Young v Murphy (1996) 1 VR 279 Category: Interlocutory applications Parties: Indra Heslop-Blochowiak and Xavier Conor Heslop-Kelly by their tutor Liam Kelly - Applicants Madison Ashton - Appellant Jeanne Pratt - Respondent Representation: Counsel: J C Hewitt - Applicants G O'L Reynolds SC, R K Newton and D W Robertson - Appellant M S Henry SC and J L Roy - Respondent Solicitors: Beazley Singleton Lawyers - Applicants David Legal - Appellant Arnold Bloch Leibler - Respondent File Number(s): 2012/42742 Decision under appeal Jurisdiction: 9111 Citation: Ashton v Pratt (No 2) [2012] NSWSC 3 Date of Decision: 2012-01-16 00:00:00 Before: Brereton J File Number(s): SC 2010/56518