Welker & Ors v Rinehart & Anor (No 2) [2011] NSWSC 1238

Welker & Ors v Rinehart & Anor (No 2) [2011] NSWSC 1238

The proceedings concern the removal of a trustee, which, though the 2006 Hope Downs Deed is binding on the first and third plaintiffs, is not a dispute 'under this deed' as defined; thus, the stay for confidential mediation/arbitration is refused as the claim neither derives from nor depends on the deed but arises independently in equity and statute; the proceedings should continue on pleadings, subject to further mediation as appropriate. An interim suppression order is made pending any application for leave to appeal to prevent prejudice to the administration of justice.

Jurisdiction
Australia
Judgment Date
07 October 2011
Procedural Posture
Motion for Stay of Proceedings and Suppression Order / Interlocutory Judgment on Motions (stay and Suppression Order)
Outcome
First and second defendants' motions for stay dismissed with costs; interim suppression order granted pending application for leave to appeal.
Legal Topics
['stay of Proceedings' 'arbitration' 'mediation' 'jurisdiction of Court' 'suppression Order' 'removal of Trustee' 'trust Deed Interpretation']
['equity' 'trusts and Trustees' 'civil Procedure'] ['stay of Proceedings' 'arbitration' 'mediation' 'jurisdiction of Court' 'suppression Order' 'removal of Trustee' 'trust Deed Interpretation']

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Procedural Posture

Motion for Stay of Proceedings and Suppression Order / Interlocutory Judgment on Motions (stay and Suppression Order)

Legal Issues

  1. 1 ["Whether the 2006 'Hope Downs Deed' is binding on the first and third plaintiffs" 'Whether the subject matter (removal of trustee) is susceptible to arbitration or mediation under private justice mechanisms' "Whether the proceedings are a 'dispute under this deed' (the Hope Downs Deed) and thus caught by its ADR provisions" 'Whether any discretionary or public policy considerations arise in refusing to grant a stay or ordering compulsory mediation' 'Whether a further suppression order should be made pending appeal']

Ratio Decidendi

The proceedings concern the removal of a trustee, which, though the 2006 Hope Downs Deed is binding on the first and third plaintiffs, is not a dispute 'under this deed' as defined; thus, the stay for confidential mediation/arbitration is refused as the claim neither derives from nor depends on the deed but arises independently in equity and statute; the proceedings should continue on pleadings, subject to further mediation as appropriate. An interim suppression order is made pending any application for leave to appeal to prevent prejudice to the administration of justice.

Court Disposition

First and second defendants' motions for stay dismissed with costs; interim suppression order granted pending application for leave to appeal.

Orders

  • ["First defendant's motion filed 16 September 2011 dismissed with costs." "Second defendant's motion filed in court on 7 October 2011 dismissed with costs." 'Leave to plaintiffs to amend summons; proceedings continue on pleadings; statement of claim to be filed within 21 days.' 'Interim suppression order made...