Fischer v Nemeske Pty Ltd (No 2)

THE COURT: The appellants have filed a notice of motion by which they seek an order re-opening the appeal which was determined by the order of dismissal made on 11 February 2015 for reasons given on that day: Fischer v Nemeske Pty Ltd [2015] NSWCA 6. The second and third respondents (“the executors”) oppose the making of the order the appellants seek.

The appellants contend that this Court:

Contentions (a) and (b) may be dealt with together. They are founded on two propositions: first, that the Court did not accept either the appellants’ argument that there could be no exercise of the clause 4(b) power without a transfer of trust assets or the executors’ argument that the 23 September 1994 resolution of the trustee was effective to create a debt; and, second, that the Court’s decision was that the 23 September 1994 resolution effected a resettlement.

The executors say that, while the analysis and reasons of the Court did not precisely reflect the position taken by either the appellants or the executors, it did not involve such a departure from the territory mapped out by the respective cases as to constitute denial of a fair hearing.

The issue was never whether the 23 September 1994 resolution alone gave rise to a cause of action in debt upon which the executors could sue. As the primary judge acknowledged (at [169]) and this Court noted (at [87]), counsel for the executors, in advancing the cross-claim at trial, accepted that any such action was time barred when that cross-claim was filed. Of necessity, therefore, the cross-claim depended on matters beyond the isolated effect of the 23 September 1994 resolution. The issue was always as to the effect of the resolution in combination with other matters.

The decision of this Court was not that Mr Nemes and Mrs Nemes became entitled to relief of a proprietary nature in respect of the trust property. Rather, it was decided that, because of the 23 September 1994 resolution and other events that were fully canvassed in the parties’ submissions, a money obligation, enforceable by action at law, came to be owed to Mr Nemes and Mrs Nemes by the trustee. That was the position for which the executors contended. Central to acceptance of it were the decisions in Re Baron Vestey's Settlement; Lloyds Bank Ltd v O'Meara [1951] Ch 209 and Commissioner of Inland Revenue v Ward [1970] NZLR 1, both of which were relied on in the parties’ submissions. The fact that the Court saw fit to refer to other cases not mentioned by the parties which proceeded on a similar basis (particularly Chianti Pty Ltd v Leume Pty Ltd [2007] WASCA 270; 35 WAR 488) does not bespeak lack of procedural fairness.

As to contention (c) at [2] above, the appellants refer to pre-hearing correspondence with the Registrar in which argument on the question of the correctness of Clark v Inglis was foreshadowed and to certain aspects of the submission made on the appeal.

It was (and is) unnecessary to address the question whether Clark v Inglis was wrongly decided. The reasons of 11 February 2015 were not based on any acceptance of its correctness. It was stated at [62] and [63] of the reasons, without reliance on Clark v Inglis, that:

The appellant’s motion seeking re-opening is dismissed with costs.