Gooley v Gooley (No 2) [2020] NSWSC 1018

Gooley v Gooley (No 2) [2020] NSWSC 1018

The undertaking in paragraph 1(a)(ii) of the orders made on 8 July 2020 went beyond the undertakings required by the First Judgment and was given because of a mistake by the plaintiffs' legal representatives. As the undertaking was interlocutory in nature, the Court could release the plaintiffs from it and vary the 8 July 2020 orders. It would be unjust to visit the consequences of the mistaken undertaking on the plaintiffs where the First Judgment did not require that evidence to avoid jeopardy to the Estate. Once the plaintiffs were released from the undertaking, their non-compliance did not warrant the defendant's further relief, including appointment of an administrator pendente lite.

Jurisdiction
Australia
Judgment Date
05 August 2020
Procedural Posture
Notice of Motion in a Probate Proceeding Concerning Undertakings and Appointment of an Administrator Pendente Lite / Interlocutory Application in the Equity Expedition List
Outcome
The plaintiffs were released from paragraph 1(a)(ii) of their undertakings given to the Court on 8 July 2020, the defendant's notice of motion filed on 29 July 2020 was dismissed, order 2 made on 8 July 2020 was varied, and each side was ordered to pay its own costs of the motion and hearing.
Legal Topics
['undertakings to the Court' 'release From Undertakings' 'administrator Pendente Lite' 'variation of Interlocutory Orders' 'costs']
['practice and Procedure' 'probate and Administration'] ['undertakings to the Court' 'release From Undertakings' 'administrator Pendente Lite' 'variation of Interlocutory Orders' 'costs']

Case Brief

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Procedural Posture

Notice of Motion in a Probate Proceeding Concerning Undertakings and Appointment of an Administrator Pendente Lite / Interlocutory Application in the Equity Expedition List

Legal Issues

  1. 1 ['Whether the plaintiffs should be released from the undertaking noted in paragraph 1(a)(ii) of the orders made on 8 July 2020 because it was proffered by mistake.' "Whether the plaintiffs' failure to comply with paragraph 1(a)(ii) warranted the relief sought by the defendant, including appointment of an administrator pendente lite." 'Whether the orders made on 8 July 2020 could be varied under Uniform Civil Procedure Rules 2005 (NSW), r 36.16(3).' "What costs order should be made on the defendant's notice of motion filed on 29 July 2020."]

Ratio Decidendi

The undertaking in paragraph 1(a)(ii) of the orders made on 8 July 2020 went beyond the undertakings required by the First Judgment and was given because of a mistake by the plaintiffs' legal representatives. As the undertaking was interlocutory in nature, the Court could release the plaintiffs from it and vary the 8 July 2020 orders. It would be unjust to visit the consequences of the mistaken undertaking on the plaintiffs where the First Judgment did not require that evidence to avoid jeopardy to the Estate. Once the plaintiffs were released from the undertaking, their non-compliance did not warrant the defendant's further relief, including appointment of an administrator pendente lite.

Court Disposition

The plaintiffs were released from paragraph 1(a)(ii) of their undertakings given to the Court on 8 July 2020, the defendant's notice of motion filed on 29 July 2020 was dismissed, order 2 made on 8 July 2020 was varied, and each side was ordered to pay its own costs of the motion and hearing.

Orders

  • ['Order that the plaintiffs be released from the undertaking noted in paragraph 1(a)(ii) of the orders made by the Court on 8 July 2020.' "Order that the defendant's notice of motion filed on 29 July 2020 is dismissed." 'Pursuant to r 36.16(3) of the Uniform Civil Procedure Rules 2005 (NSW), vary order 2 made on 8...