Ward P at [1]; White JA at [124]; Brereton JA at [167]
Decision:
1. Allow the appeal in relation to ground 1.
2. Set aside Order 1 of the orders made by Taylor SC DCJ on 13 September 2021 insofar as it requires that the appellant (Ms Susan Bryant) pay to the respondent (Mr Terence Quinn) the sum of $50,729.24 (see the calculations at [93] of his Honour’s reasons).
3. Remit to the District Court for re-hearing the claim by the respondent (the plaintiff in District Court proceedings 2019/298560) for recovery of payments made by the respondent towards the appellant’s legal costs of the Supreme Court Proceedings involving a dispute between the appellant and her grandmother.
4. Set aside Order 2 of the orders made by Taylor SC DCJ on 13 September 2021 and in lieu thereof order each party to bear her and his own costs of the proceeding at first instance (noting that the costs of any further proceedings in the District Court on the remittal be borne as directed by the District Court).
5. Order the respondent to pay 50% of the appellant’s costs of the appeal.
6. Grant liberty to the parties to apply to my Associate to refer the matter for Court-annexed mediation of the remaining issues in dispute.
Catchwords:
PERSONAL PROPERTY — Gifts — Conditional gifts — Where the respondent advanced moneys to the appellant to assist in the payment of legal fees and the payment of stamp duty — Whether moneys were advanced by way of loan or unconditional gift — Where primary judge held that certain moneys advanced by way of conditional gift — Where conditional gift not pleaded
APPEALS — From finding of fact — Credibility of witnesses
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Bryant v Quinn [2022] NSWCA 163
Case
[2022] NSWCA 163
Decision Date
CaseChat Overview and Summary
The appeal in *Bryant v Quinn* concerned a dispute between the appellant, Ms Susan Bryant, and the respondent, Mr Terence Quinn, regarding moneys advanced by Mr Quinn to Ms Bryant. The primary judge had found that certain moneys advanced by Mr Quinn were by way of a conditional gift, but this basis was not pleaded. The appeal was heard by Ward P, White and Brereton JJA.
The legal issues before the Court of Appeal included whether the primary judge erred in finding that certain moneys advanced by the respondent to the appellant were by way of a conditional gift, particularly when this was not a pleaded case. The court also considered the implications of a conditional gift not being pleaded and the appropriate orders to be made on appeal.
The Court of Appeal allowed the appeal in relation to the first ground, setting aside the order requiring Ms Bryant to pay $50,729.24 to Mr Quinn. The court reasoned that the primary judge's finding of a conditional gift was made without that basis having been properly pleaded, which prejudiced the appellant. Consequently, the claim for recovery of payments made towards Ms Bryant's legal costs was remitted to the District Court for re-hearing. The court also varied the costs orders at first instance and ordered Mr Quinn to pay 50% of Ms Bryant's costs of the appeal. Liberty was granted for parties to apply for court-annexed mediation of the remaining issues.
Orders
Orders of the court
1. Allow the appeal in relation to ground 1.
2. Set aside Order 1 of the orders made by Taylor SC DCJ on 13 September 2021 insofar as it requires that the appellant (Ms Susan Bryant) pay to the respondent (Mr Terence Quinn) the sum of $50,729.24 (see the calculations at [93] of his Honour’s reasons).
3. Remit to the District Court for re-hearing the claim by the respondent (the plaintiff in District Court proceedings 2019/298560) for recovery of payments made by the respondent towards the appellant’s legal costs of the Supreme Court Proceedings involving a dispute between the appellant and her grandmother.
4. Set aside Order 2 of the orders made by Taylor SC DCJ on 13 September 2021 and in lieu thereof order each party to bear her and his own costs of the proceeding at first instance (noting that the costs of any further proceedings in the District Court on the remittal be borne as directed by the District Court).
5. Order the respondent to pay 50% of the appellant’s costs of the appeal.
6. Grant liberty to the parties to apply to my Associate to refer the matter for Court-annexed mediation of the remaining issues in dispute.