Gorman v Gorman; Estate late Jeanette Mary Gorman [2003] NSWSC 647

Gorman v Gorman; Estate late Jeanette Mary Gorman [2003] NSWSC 647

Acting Master Berecry was not conducting a trial or hearing of proceedings but was dealing with a matter under Schedule D Pt 3 para 4(b) of the Supreme Court Rules, so an appeal to a single judge was competent. He was dealing with an administration suit but not a general administration suit, and Pt 68 r9 did not arise because no order was made for a person other than the executor to conduct a sale of property. The Acting Master therefore had jurisdiction as a Master, making the 26 March 2003 nunc pro tunc order immaterial.

Jurisdiction
Australia
Judgment Date
14 July 2003
Procedural Posture
Application Under the Family Provision Act 1982 With Notices of Motion Concerning an Appeal From an Acting Master and an Ex Parte Order / Hearing of Two Notices of Motion
Outcome
Both notices of motion dismissed; the first because the point was wrong and the second because it was otiose.
Legal Topics
['appeals From a Master' 'competency of Appeal to a Single Judge or the Court of Appeal' 'administration Suit' 'enforcement of Family Provision Act Orders' 'supreme Court Rules Pt 60 and Pt 68']
['civil Procedure' 'succession' 'equity'] ['appeals From a Master' 'competency of Appeal to a Single Judge or the Court of Appeal' 'administration Suit' 'enforcement of Family Provision Act Orders' 'supreme Court Rules Pt 60 and Pt 68']

Case Brief

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Procedural Posture

Application Under the Family Provision Act 1982 With Notices of Motion Concerning an Appeal From an Acting Master and an Ex Parte Order / Hearing of Two Notices of Motion

Legal Issues

  1. 1 ["Whether the appeal from Acting Master Berecry's orders was incompetent because it should have been brought in the Court of Appeal rather than before a single judge." 'Whether Acting Master Berecry was conducting a trial or hearing of proceedings, or hearing a matter under Schedule D Pt 3 para 4 of the Supreme Court Rules.' 'Whether Acting Master Berecry was exercising powers under Pt 68 of the Supreme Court Rules or s 84 of the Wills Probate and Administration Act 1898.' 'Whether the ex parte order made on 26 March 2003 should be set aside.']

Ratio Decidendi

Acting Master Berecry was not conducting a trial or hearing of proceedings but was dealing with a matter under Schedule D Pt 3 para 4(b) of the Supreme Court Rules, so an appeal to a single judge was competent. He was dealing with an administration suit but not a general administration suit, and Pt 68 r9 did not arise because no order was made for a person other than the executor to conduct a sale of property. The Acting Master therefore had jurisdiction as a Master, making the 26 March 2003 nunc pro tunc order immaterial.

Court Disposition

Both notices of motion dismissed; the first because the point was wrong and the second because it was otiose.

Orders

  • ['Dismiss both notices of motion.' 'The plaintiff is to pay the costs of the motion of 9 April 2003.' 'The costs of the other notice of motion are to be costs in the appeal.' 'Time for filing notices of contention is extended to 29 July 2003.' "The matter is to be listed in the Registrar's list for mention on 12...