Marshall v Fleming [2014] NSWCA 64

Marshall v Fleming [2014] NSWCA 64

The orders of the primary judge were set aside because the Memorandum of Understanding was not engaged on a referral under UCPR r 20.14, the order did not appoint a particular referee, and did not identify the questions of foreign law to be referred, as required by the rules.

Parties
First Applicant: Margaret Lesley Marshall; Second Applicant: Kim Neil Marshall; First Respondent: Francis G Fleming; Second Respondent: Marc S Moller; Third Respondent: Steven R Pounian; Fourth Respondent: James P Kreindler; Fifth Respondent: David C Cook; Sixth Respondent: David Beekman; Seventh Respondent: Bianca I Rodriguez; Eighth Respondent: Noah H Kushlefsky; Ninth Respondent: Robert J Spragg; Tenth Respondent: Brian J Alexander; Eleventh Respondent: Justin T Green
Jurisdiction
Australia
Judgment Date
20 March 2014
Procedural Posture
Civil Appeal / Application for Leave to Appeal and Appeal From Interlocutory Order
Outcome
Appeal allowed in part; orders for leave to appeal, setting aside of primary orders, and directions for further steps.
Legal Topics
Interlocutory Order, Referral of Questions of Law, Foreign Law, Uniform Civil Procedure Rules
Procedure Civil Law Interlocutory Order Referral of Questions of Law Foreign Law Uniform Civil Procedure Rules

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 8 Party arguments 2
Sign in to unlock

Parties

Margaret Lesley Marshall

First Applicant

Kim Neil Marshall

Second Applicant

Francis G Fleming

First Respondent

Marc S Moller

Second Respondent

Steven R Pounian

Third Respondent

James P Kreindler

Fourth Respondent

David C Cook

Fifth Respondent

David Beekman

Sixth Respondent

Bianca I Rodriguez

Seventh Respondent

Noah H Kushlefsky

Eighth Respondent

Robert J Spragg

Ninth Respondent

Brian J Alexander

Tenth Respondent

Justin T Green

Eleventh Respondent

Procedural Posture

Civil Appeal / Application for Leave to Appeal and Appeal From Interlocutory Order

Legal Issues

  1. 1 Whether the primary judge erred in making an order under UCPR r 20.14 referring questions of foreign law to a New York Panel of Referees without appointing a referee and identifying the questions to be referred;
  2. 2 Whether the Memorandum of Understanding between the Chief Justice of New South Wales and Chief Judge of the State of New York is engaged in circumstance of the reference under UCPR r 20.14;
  3. 3 Whether an order for referral under UCPR r 20.14 requires identification of the referee and question(s) to be answered

Ratio Decidendi

The orders of the primary judge were set aside because the Memorandum of Understanding was not engaged on a referral under UCPR r 20.14, the order did not appoint a particular referee, and did not identify the questions of foreign law to be referred, as required by the rules.

Court Disposition

Appeal allowed in part; orders for leave to appeal, setting aside of primary orders, and directions for further steps.

Orders

  • Grant the applicants leave to appeal limited to the three matters referred to in par [14] of this judgment.
  • Direct the applicants to file a Notice of Appeal limited to those matters within 7 days.