Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Telfer v Telfer (No 3) [2014] NSWCA 251 Hearing dates: 14, 15 May 2014, 8 July 2014 Decision date: 31 July 2014 Before: Macfarlan JA; Gleeson JA; Sackville AJA Decision: 1. Grant the applicant leave to appeal limited to the costs orders made by the primary Judge on 14 June 2013. 2. Allow the appeal. 3. Direct 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. 4. Without 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. 5. In 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. 6. The 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). 7. The first respondent, if otherwise qualified, have a certificate under the Suitors' Fund Act 1951 (NSW). [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 AND PROCEDURE - final orders following joinder of the administrator of the estate Cases Cited: Telfer v Telfer [2014] NSWCA 186 Telfer v Telfer (No 2) [2014] NSWCA 250 Category: Consequential orders Parties: Neil Ronald Telfer (Applicant / Appellant) Carolyn Telfer (First Respondent) Kenneth John Fairfax, in his capacity as administrator of the estate of the late Lyall Telfer (Second Respondent) Representation: Counsel: M K Rollinson (Applicant / Appellant) D H Murr SC (First Respondent) In person (Second Respondent) Solicitors: Barrak Lawyers (Applicant / Appellant) Whitehead Cooper Williams (First Respondent) Fairfax Lawyers (Second Respondent) File Number(s): 2013/205049 Publication restriction: None Decision under appeal Jurisdiction: 9111 Citation: Neil Ronald Telfer as Executor for the Estate of the late Lyall Telfer v Carolyn Telfer [2013] NSWSC 412 (24 April 2013) Neil Ronald Telfer as Executor for the Estate of the late Lyall Telfer v Carolyn Telfer (No 2) [2013] NSWSC 823 (21 June 2013) Date of Decision: 2013-06-14 00:00:00 Before: Slattery J File Number(s): 2011/283114 Judgment 1THE COURT: In the Principal Judgment delivered on 13 June 2014, the Court indicated the orders it proposed to make, subject to the applicant taking steps to join the administrator of the estate as a party to the proceedings: Telfer v Telfer [2014] NSWCA 186 at [111]-[112]. 2Orders have been made in a judgment of Sackville AJA delivered today for the joinder of the administrator: Telfer v Telfer (No 2) [2014] NSWCA 250. 3In order to dispose of the appeal, the Court makes the following orders: 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). ********** 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. Decision last updated: 31 July 2014