Telfer v Telfer [2014] NSWCA 186

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Telfer v Telfer [2014] NSWCA 186 Hearing dates: 14, 15 May 2014 Decision date: 13 June 2014 Before: Macfarlan JA at [1]; Gleeson JA at [2]; Sackville AJA at [3] Decision: 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. 4. The matter be relisted for directions at 9:30 am on 3 July 2014. [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: APPEAL - application to adduce further evidence - evidence could have been obtained through reasonable diligence for use at trial - evidence not likely to have led to a different result at trial

APPEAL - Leave to appeal against costs orders only - whether costs orders based on findings not justified by evidence - primary judge made findings of very serious misconduct based on the credibility of witnesses and adverse inferences drawn from evidence - failure to take into account the gravity of the allegations or matters bearing on the inherent probability that such misconduct occurred - whether appellate intervention is justified in the circumstances