Glenella One Pty Limited v Duncan (No 2) [2015] NSWSC 441

Supreme Court New South Wales

Medium Neutral Citation: Glenella One Pty Limited v Duncan (No 2) [2015] NSWSC 441 Hearing dates: 15 April 2015 Date of orders: 17 April 2015 Decision date: 17 April 2015 Jurisdiction: Common Law Before: Schmidt J Decision: Application to lift stay refused. Orders made on 6 March 2015 varied. Catchwords: PROCEDURE – notice of motion – application for an order to lift stay – the application refused – orders earlier imposed varied Legislation Cited: Civil Procedure Act 2005 (NSW) Family Law Act 1975 (Cth) Real Property Act 1900 (NSW) Cases Cited: Glenella One Pty Limited v Duncan [2015] NSWSC 165 Category: Procedural and other rulings Parties: Glenella One Pty Ltd ACN 158 632 976 (Plaintiff/Second Cross-Defendant) Andrew David Duncan (First Defendant/First Cross-Claimant) White Turtle Pty Ltd ACN 108 030 137 (Second Defendant/First Cross-Defendant) Morten Weaver (Third Defendant/Fourth Cross-Defendant) Jane Duncan (Fourth Cross-Defendant) Representation: Counsel: Mr C Birch SC (Plaintiff/Second Cross-Defendant) Mr G W McGrath (First Defendant/First Cross-Claimant) File Number(s): 2014/00163175 Publication restriction: None

Judgment 1. On 6 March 2015, I refused an application brought by the defendant, Mr Andrew Duncan, for an order transferring these proceedings to the Family Court. An order staying the proceedings until further order, pending the Family Court's determination of an application which the plaintiff, Glenella, had brought in that Court, to be removed as a party to those proceedings was, however, then made (see Glenella One Pty Limited v Duncan [2015] NSWSC 165). 2. These proceedings concern a claim for possession brought by Glenella, the registered proprietor of a leasehold interest in a property at Manly, where Mr Duncan, a paraplegic, has long lived and in which he claims an equitable interest. Mr Duncan resists Glenella's claim and, by a cross-claim, seeks an order that its interest in the property be transferred to him, given the circumstances in which it became the proprietor of the property, he claims, as the result of fraud. 3. Mr Duncan's sister, Ms Jane Duncan, and her former de facto husband, Mr Morton Weaver and their family company, White Turtle Pty Ltd, the former registered proprietor of the lease, are all parties to these proceedings. Mr Weaver, who is now a bankrupt, has not been active in the proceedings, nor has his Trustee taken an interest. Nor have White Turtle, now in liquidation as the result of steps taken by Mr Weaver, or Ms Duncan or her estate been active. 4. The Family Court proceedings concern claims made by Ms Duncan against Mr Weaver in relation to, amongst other things, her interest in White Turtle and through it, the Manly property, which it transferred to Glenella, Ms Duncan claimed, as the result of fraudulent steps taken by Mr Weaver, when he dealt with Glenella's corporate adviser, Mr Ted Manny and which resulted in Glenella acquiring the property in return for certain non-voting shares. Both Mr Duncan and Glenella are also parties to those proceedings. 5. The details of all of these matters and how the parties advance their claims are discussed in the March judgment and I do not repeat them here. 6. Glenella now seeks an order lifting the stay. 7. At the time that the stay was granted, an application made by Glenella in the Family Court, that it be removed as a party to those proceedings, was due to be heard on 30 March 2015. On 10 March, Mr Duncan issued subpoenas for production of documents which relate to the disputed transaction in those proceedings, directed to Glenella, its corporate adviser Mr Manny, solicitors and accountants. 8. Ms Duncan died on 16 March. It is common ground between the parties that Ms Duncan's death does not automatically bring the Family Court proceedings to an end. 9. On 24 March Mr Weaver, who had also not been active in the Family Court proceedings, served an affidavit he had sworn, in which he deposed to Ms Duncan's death, asserted that he was her executor and requested that the Family Law proceedings be withdrawn. His interest in Ms Duncan's estate is, however, contested by Mr Duncan. 10. On 25 March, the Family Court matter was listed for return of subpoenas. There was an objection to Mr Duncan having access to the documents produced. Mr Weaver was then represented, contending that no steps should be taken in the proceedings, pending determination of his application. The subpoenas were stood over to 27 April. 11. On 27 March, Mr Duncan served a handwritten will executed by Ms Duncan in November 2014. On 30 March, in the Family Court, Mr Duncan sought that Glenella's application to be removed from those proceedings be heard. The matter was adjourned, there being no appointed representative for Ms Duncan's estate, given the contest over her will. The matter is next listed for directions on 9 June. 12. On 7 April, Glenella sought the relisting of these proceedings. That day Ms Duncan's mother applied to this Court for administration ad litem of Ms Duncan's estate. The Court issued requisitions, which were answered on 9 April. Mr Weaver has served a caveat requiring strict proof of the execution of Ms Duncan's handwritten will, which is being responded to. Any dispute over the two wills will have to be resolved in the Probate Division of this Court. Whether there will be any dispute requiring the Court's resolution, is not yet known. 13. On 10 April 2015, Glenella applied for removal of the stay. Garling J directed it to file a motion and gave directions as to the filing of evidence.