One.Tel Limited (In liq) v David Watson & Ors (No 2) [2009] NSWCA 396

One.Tel Limited (In liq) v David Watson & Ors (No 2) [2009] NSWCA 396

The Court declined to make One.Tel's proposed declaration because it had not been sought below or in the notice of appeal, the proceedings had been conducted on agreed facts and separate questions, and the Court had not received submissions sufficient to appreciate the ramifications of the declaration. The Court did not resolve the disputed trustee appointment and substitution orders, but held that the procedural difficulty caused by the Trustee's death had to be addressed before final orders. The Court therefore made only an order for a directions hearing.

Jurisdiction
Australia
Judgment Date
07 December 2009
Procedural Posture
Consequential Orders in an Appeal / On the Papers After Judgment, Concerning Proposed Orders and Costs
Outcome
A directions hearing was ordered; no further final consequential orders were made at this stage.
Legal Topics
['consequential Orders' 'directions Hearing' 'separate Questions' 'declaration Not Sought Below' 'appointment or Substitution of Trustee' 'costs of Appeal']
['civil Procedure' 'costs' 'appeals'] ['consequential Orders' 'directions Hearing' 'separate Questions' 'declaration Not Sought Below' 'appointment or Substitution of Trustee' 'costs of Appeal']

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Procedural Posture

Consequential Orders in an Appeal / On the Papers After Judgment, Concerning Proposed Orders and Costs

Legal Issues

  1. 1 ["Whether One.Tel's proposed declaration that the assignment of the chose in action pursuant to the Deed was effective notwithstanding termination of the Deed should be made." 'Whether proposed orders appointing Steven Sherman as a new trustee, vesting trust property in him and substituting him as plaintiff should be made.' 'How the procedural difficulty created by the death of the Trustee should be addressed before final orders are made.' 'What costs orders should be made following the appeal.']

Ratio Decidendi

The Court declined to make One.Tel's proposed declaration because it had not been sought below or in the notice of appeal, the proceedings had been conducted on agreed facts and separate questions, and the Court had not received submissions sufficient to appreciate the ramifications of the declaration. The Court did not resolve the disputed trustee appointment and substitution orders, but held that the procedural difficulty caused by the Trustee's death had to be addressed before final orders. The Court therefore made only an order for a directions hearing.

Court Disposition

A directions hearing was ordered; no further final consequential orders were made at this stage.

Orders

  • ['A directions hearing be held on 15 December 2009 at 9.30 am.']