Dogra v Dogra (No 4) - [2024] NSWCA 259

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Dogra v Dogra (No 4) [2024] NSWCA 259
Hearing dates: 16 September 2024
Date of orders: 31 October 2024
Decision date: 31 October 2024
Before: Bell CJ at [1];
Ward P at [2];
Payne JA at [3]
Decision:
(1)   Appeal dismissed;
(2)   Appellant (Aruna) and second respondent (Kapil) to pay the first respondent’s (Mamta’s) costs of the appeal;
(3)   Cross-appeal dismissed;
(4)   Cross-appellant (Kapil) to pay the second cross-respondent’s (Mamta’s) costs of the cross-appeal;
(5)   There be no order for costs of the appeal or the cross-appeal as between the appellant and first cross-respondent (Aruna) and the cross-appellant and second respondent (Kapil).

Catchwords:
REAL PROPERTY — Claim to beneficial interest in land registered under the Real Property Act 1900 NSW — where primary judge made extensive credit findings — where documentary evidence inconsistent with alleged entitlement — whether primary judge entitled to draw Jones v Dunkel inference — where parties financially interdependent
EVIDENCE — Credibility evidence — Cross-examination — collateral issue — where primary judge refused cross-examination — whether collateral issue substantially affected credit
APPEALS — From finding of fact — Admission of further evidence — Evidence not available at hearing — informal applications — application refused

Legislation Cited:
Civil Procedure Act 2005 (NSW) s 56
Evidence Act 1995 (NSW) ss 102, 103
Real Property Act 1900 (NSW)

Cases Cited:
Amaca Pty Limited (Under NSW Administered Winding Up) v Roseanne Cleary as the Legal Personal Representative of the Estate of the Late Fortunato (aka Frank) Gatt [2022] NSWCA 151
Browne v Dunn (1894) 6 R 67
Crackin’ Snack Pty Ltd v Gameking Australia Pty Ltd [2024] NSWCA 182
Dogra v Dogra [2023] NSWSC 1642
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Ghosh v Medical Council of NSW [2020] NSWCA 122
Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186; [2006] NSWCA 187
Jones v Dunkel (1959) CLR 289
Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11
Lee v Lee (2019) 266 CLR 129; [2019] HCA 28

Category: Principal judgment
Parties: Aruna Dogra (appellant/first cross-respondent)
Mamta Dogra (first respondent/second cross-respondent)
Kapil Dogra (second respondent/cross-appellant)
Representation:
Counsel:
C D Freeman (appellant/first cross-respondent)
D O’Dea (first respondent/second cross-respondent)
S Golledge SC (second respondent/cross-appellant)
Solicitors:
Goodwin and Co. Lawyers (appellant/ first cross-respondent) (notice of ceasing to act filed 25 October 2024)
O’Dea Lawyers (first respondent/second cross-respondent)
J.P. Capsanis and Co. Lawyers (second respondent/cross-appellant)

File Number(s): 2024/8811
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity

Citation:

[2023] NSWSC 1642

Date of Decision:

21 December 2023

Before:

Lindsay J

File Number(s):

2021/151823

HEADNOTE

[This headnote is not to be read as part of the judgment]

The first respondent, Ms Mamta Dogra and her former husband, the second respondent/cross-appellant, Mr Kapil Dogra are the registered proprietors of a house in Hurstville (“the Hurstville Property”). The appellant, Ms Aruna Dogra, is Mr Kapil Dogra’s…

Grounds of appeal

[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.

Continue reading Dogra v Dogra (No 4)

Details

AGLC: Dogra v Dogra (No 4) [2024] NSWCA 259
Case: [2024] NSWCA 259
Decision Date: 31 October 2024

CaseChat Overview and Summary

The appeal concerned a claim to a beneficial interest in land registered under the *Real Property Act 1900* (NSW). The primary judge had made extensive findings regarding the credit of the parties, finding that the documentary evidence was inconsistent with the appellant's alleged entitlement. The court considered whether the primary judge was entitled to draw a *Jones v Dunkel* inference, noting the financial interdependence of the parties.

The legal issues before the Court of Appeal included whether the primary judge erred in refusing to allow cross-examination on a collateral issue that was argued to substantially affect the credit of a witness. The court also considered an informal application to admit further evidence on appeal, which was refused on the basis that the evidence was not available at the original hearing.

The Court of Appeal dismissed the appeal, finding that the primary judge was entitled to make the credit findings and draw the *Jones v Dunkel* inference given the inconsistencies in the evidence. The court also upheld the refusal to permit cross-examination on the collateral issue, concluding it would not have substantially affected the witness's credit. The application to admit further evidence was refused as it did not meet the criteria for admitting fresh evidence on appeal. The cross-appeal was also dismissed.

Orders

Orders of the court

(1) Appeal dismissed;

(2) Appellant (Aruna) and second respondent (Kapil) to pay the first respondent’s (Mamta’s) costs of the appeal;

(3) Cross-appeal dismissed;

(4) Cross-appellant (Kapil) to pay the second cross-respondent’s (Mamta’s) costs of the cross-appeal;

(5) There be no order for costs of the appeal or the cross-appeal as between the appellant and first cross-respondent (Aruna) and the cross-appellant and second respondent (Kapil).

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Dogra v Dogra (No 4) [2024] NSWCA 259
Hearing dates:	16 September 2024
Date of orders:	31 October 2024
Decision date:	31 October 2024
Before:	Bell CJ at [1]; Ward P at [2]; Payne JA at [3]
Decision:	(1) Appeal dismissed; (2) Appellant (Aruna) and second respondent (Kapil) to pay the first respondent’s (Mamta’s) costs of the appeal; (3) Cross-appeal dismissed; (4) Cross-appellant (Kapil) to pay the second cross-respondent’s (Mamta’s) costs of the cross-appeal; (5) There be no order for costs of the appeal or the cross-appeal as between the appellant and first cross-respondent (Aruna) and the cross-appellant and second respondent (Kapil).
Catchwords:	REAL PROPERTY — Claim to beneficial interest in land registered under the Real Property Act 1900 NSW — where primary judge made extensive credit findings — where documentary evidence inconsistent with alleged entitlement — whether primary judge entitled to draw Jones v Dunkel inference — where parties financially interdependent EVIDENCE — Credibility evidence — Cross-examination — collateral issue — where primary judge refused cross-examination — whether collateral issue substantially affected credit APPEALS — From finding of fact — Admission of further evidence — Evidence not available at hearing — informal applications — application refused
Legislation Cited:	Civil Procedure Act 2005 (NSW) s 56 Evidence Act 1995 (NSW) ss 102, 103 Real Property Act 1900 (NSW)
Cases Cited:	Amaca Pty Limited (Under NSW Administered Winding Up) v Roseanne Cleary as the Legal Personal Representative of the Estate of the Late Fortunato (aka Frank) Gatt [2022] NSWCA 151 Browne v Dunn (1894) 6 R 67 Crackin’ Snack Pty Ltd v Gameking Australia Pty Ltd [2024] NSWCA 182 Dogra v Dogra [2023] NSWSC 1642 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Ghosh v Medical Council of NSW [2020] NSWCA 122 Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186; [2006] NSWCA 187 Jones v Dunkel (1959) CLR 289 Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11 Lee v Lee (2019) 266 CLR 129; [2019] HCA 28
Category:	Principal judgment
Parties:	Aruna Dogra (appellant/first cross-respondent) Mamta Dogra (first respondent/second cross-respondent) Kapil Dogra (second respondent/cross-appellant)
Representation:	Counsel: C D Freeman (appellant/first cross-respondent) D O’Dea (first respondent/second cross-respondent) S Golledge SC (second respondent/cross-appellant) Solicitors: Goodwin and Co. Lawyers (appellant/ first cross-respondent) (notice of ceasing to act filed 25 October 2024) O’Dea Lawyers (first respondent/second cross-respondent) J.P. Capsanis and Co. Lawyers (second respondent/cross-appellant)
File Number(s):	2024/8811
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity Citation: [2023] NSWSC 1642 Date of Decision: 21 December 2023 Before: Lindsay J File Number(s): 2021/151823