Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Tyree v Ward [2015] NSWCA 296 Hearing dates: 22 September 2015 Date of orders: 22 September 2015 Decision date: 30 September 2015 Before: Ward JA, Sackville AJA Decision: Leave to appeal dismissed with costs. Catchwords: PRACTICE AND PROCEDURE – primary Judge refused applicant leave to file third version of statement of claim - application for leave to appeal from interlocutory decision - whether application gives rise to an issue of principle or injustice if refused – application for leave to appeal refused Legislation Cited: Succession Act 2006 (NSW) Cases Cited: Dank v Cronulla Sutherland District Rugby League Football Club Ltd [2014] NSWCA 288 Tyree v Ward (Supreme Court (NSW), Young AJ, 20 May 2015, unrep) Category: Principal judgment Parties: Christopher Tyree (Applicant) David William Ward (First Respondent) John Lucas Ramos (Second Respondent) David Burnett McNeil (Third Respondent) Robyn Joy Fennell (Fourth Respondent) Peter Lyndon Tyree (Fifth Respondent) Representation: Counsel: In person (Applicant) AP Cheshire (Respondents) Solicitors: McLachlan Thorpe Partners (Respondents) File Number(s): 2015/178943 Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity Division Date of Decision: 20 May 2015 Before: Young AJ File Number(s): 2014/312902 [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.] Judgment 1. THE COURT: The applicant filed a summons seeking leave to appeal from the decision of a Judge of the Equity Division (Young AJ). [1] The primary Judge refused leave for the plaintiff to file what his Honour described as the third version of the applicant's statement of claim (Proposed SC) which had "completely recast" the applicant's case. 2. Since the earlier version of the statement had been abandoned by the applicant, his Honour struck out that version of the pleading, except for a claim made by the plaintiffs (who at that stage included the applicant's adult children) for a family provision order under the Succession Act 2006 (NSW) out of the estate of the applicant's late father, Sir William Tyree (the Deceased). The primary Judge directed that the original statement of claim could be replaced with a summons and that the summons should be deemed to have been filed on the date that the original statement of claim had been filed. 3. The applicant appeared on his own behalf at the hearing of the application for leave. The respondents to the application are the four executors of the estate of the Deceased (who died on 25 October 2013) and a brother of the applicant. [2] The applicant's children are not parties to the application for leave to appeal and it appears that they have compromised their claims against the estate of the Deceased. 4. At the conclusion of the hearing, the Court dismissed the application for leave to appeal, with costs, with reasons to be given later. These are the reasons for the orders made by the Court. 5. The background to the present application is as follows. The applicant brought proceedings against the Deceased during the latter's lifetime. The proceedings were compromised after a mediation and were the subject of a Deed of Settlement dated 16 May 2013. The Deed of Settlement contained certain warranties by the Deceased as to the terms of his will. The applicant released the Deceased and the applicant's siblings from claims against them. The applicant also warranted that he would not bring a claim under the Succession Act against the Deceased's estate. 6. The Deed of Settlement recited that the applicant's siblings had agreed to enter into arrangements with the applicant whereby each of the siblings would give a direction to the Deceased's executors that, subject to certain conditions, the three adult children of the Deceased would receive the same entitlement under his will. 7. That agreement was implemented by a Deed of Agreement, executed on 16 May 2013, to which the three adult children were parties. The applicant's siblings agreed to provide the direction contemplated in the Deed of Settlement. However, the siblings were not required to give the direction until the executors made certain determinations as to allowances the applicant had agreed to make in respect of benefits he had previously received. 8. The Proposed SC sought declarations that the Deceased held part of his estate on trusts for the benefit of the applicant and his children. The primary Judge observed in the Primary Judgment that it was very difficult to work out from the Proposed SC what the causes of action were. His Honour said that the Proposed SC retained a "flavour" of a contractual case notwithstanding that a contractual claim in the earlier version of the pleading had been abandoned. 9. The Proposed SC attempted to plead a case founded on proprietary estoppel, but the pleading did not identify any particular property which was the subject of the alleged estoppel. There were other difficulties with the Proposed SC, including a lack of clarity as to whether the applicant's sister was sued only in her capacity as an executor or in her personal capacity as well. 10. His Honour observed that there had been no suggestion by senior counsel then appearing for the applicant that the pleading could be improved by a further reformulation. He also observed that the great majority of factual matters that the applicant sought to raise in the Proposed SC could be addressed in any event in the family provision claim. 11. The applicant's written submissions in support of the application for leave did not attempt to identify any error in his Honour's approach. Despite the Court repeatedly drawing his attention to the need to point to some error in the Primary Judgment that might warrant the intervention of an appellate court, the applicant did not do so. Much of his argument involved criticism of his legal representatives. Whether or not the criticism was justified (as to which we say nothing), it did not advance the application for leave to appeal. 12. The applicant made repeated reference in the course of oral argument to cl 4.5(a) of the Deceased's will. This provision, however, merely recites the membership of the Tyree Pastoral Partnership. The provision appears to have nothing to do with whether the primary Judge was correct to refuse leave to file the Proposed SC. 13. The decision challenged by the applicant was an interlocutory decision on a matter of practice and procedure. The Court is reluctant to grant leave to appeal against such a decision in the absence of an issue of principle requiring determination or the likelihood of injustice if leave is not granted. [3] Neither condition is satisfied here. 14. Not only does the applicant for leave to appeal present no issue of principle, but the applicant has not shown an arguable basis for concluding that the primary Judge erred in his approach. Insofar as the application for leave to appeal seeks relief on behalf of the applicant's adult children, it is misconceived as they are not parties to the application. 15. There is no injustice in refusing leave. As was pointed out in argument, the orders made by the primary Judge do not preclude the applicant attempting to replead his case. There is not an invitation for him to do so, since there is nothing to indicate that a sustainable case (other than the claim under the Succession Act) can be formulated. But the orders made have not dismissed the proceedings or expressly foreclosed a further application to amend. 16. For these reasons, the Court dismissed the application for leave to appeal and ordered the applicant to pay the respondents' costs. ********** Endnotes 1. Tyree v Ward (Supreme Court (NSW), Young AJ, 20 May 2015, unrep). 2. The brother was apparently appointed as an executor under the will, but has renounced the appointment. 3. Dank v Cronulla Sutherland District Rugby League Football Club Ltd [2014] NSWCA 288 at [75] and authorities cited there. 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: 30 September 2015