Scott MacRae Investments Pty Ltd & Anor v Baylily Pty Ltd & Anor [2011] NSWCA 82

Scott MacRae Investments Pty Ltd & Anor v Baylily Pty Ltd & Anor [2011] NSWCA 82

The Commercial List response, read as a whole, did not contain a clear admission that SMI had been validly appointed trustee or of the facts necessary to establish that appointment; at least proof of a valid SMI directors' resolution was required. The applicants' summary judgment application also failed because the copy minute of the alleged resolution was not proved as a business record and inadmissible evidence on information and belief could not establish the necessary fact. The order for separate questions was made without adequate reasons, involved denial of procedural fairness, was inappropriate in its terms and should not have been made. The indemnity costs order against successful...

Jurisdiction
Australia
Judgment Date
08 April 2011
Procedural Posture
Applications for Leave to Appeal and Cross Appeal From Decisions in Commercial List Proceedings / Court of Appeal Hearing on Full Submissions; Appeal and Cross Appeal Determined After Leave Granted
Outcome
Leave to appeal and cross-appeal granted; appeal from refusal of judgment on admissions or summary judgment dismissed; appeal from separate questions order allowed; cross-appeal against indemnity costs order allowed; applicants/appellants ordered to pay costs.
Legal Topics
['judgment on Admissions' 'summary Judgment' 'separate Questions' 'business Records Exception to Hearsay' 'evidence on Information and Belief' 'indemnity Costs' 'change of Trustee']
['civil Procedure' 'trusts' 'evidence' 'costs'] ['judgment on Admissions' 'summary Judgment' 'separate Questions' 'business Records Exception to Hearsay' 'evidence on Information and Belief' 'indemnity Costs' 'change of Trustee']

Case Brief

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Procedural Posture

Applications for Leave to Appeal and Cross Appeal From Decisions in Commercial List Proceedings / Court of Appeal Hearing on Full Submissions; Appeal and Cross Appeal Determined After Leave Granted

Legal Issues

  1. 1 ['Whether the applicants were entitled to judgment on admissions concerning the appointment of Scott MacRae Investments Pty Ltd as trustee of the Scott MacRae Trust in place of Baylily Pty Ltd.' 'Whether the applicants were entitled to summary judgment on the basis of the Commercial List response and affidavit evidence, including a copy minute of a resolution of SMI.' 'Whether the primary judge erred in ordering the decision of separate questions.' "Whether the primary judge erred in ordering the respondents to pay costs of the motion on an indemnity basis despite the applicants' motion failing."]

Ratio Decidendi

The Commercial List response, read as a whole, did not contain a clear admission that SMI had been validly appointed trustee or of the facts necessary to establish that appointment; at least proof of a valid SMI directors' resolution was required. The applicants' summary judgment application also failed because the copy minute of the alleged resolution was not proved as a business record and inadmissible evidence on information and belief could not establish the necessary fact. The order for separate questions was made without adequate reasons, involved denial of procedural fairness, was inappropriate in its terms and should not have been made. The indemnity costs order against successful...

Court Disposition

Leave to appeal and cross-appeal granted; appeal from refusal of judgment on admissions or summary judgment dismissed; appeal from separate questions order allowed; cross-appeal against indemnity costs order allowed; applicants/appellants ordered to pay costs.

Orders

  • ['Grant leave to appeal and direct that the notice of appeal be filed within seven days.' 'Appeal against the disposal of the amended notice of motion filed on 5 March 2010, other than against order 2 made on 26 March 2010, dismissed.' 'Appeal against order 2 made on 26 March 2010 allowed.' 'Order that order 2 made...