Giles JA at 1, Campbell JA at 2, Sackville AJA at 151
Decision:
1. Appeal allowed. 2. Set aside the judgment on the claim and cross-claim in the court below, and in lieu thereof order: (a) the plaintiffs' claim to any relief relating to the property at Walmer Street, Ramsgate be dismissed; (b) the plaintiffs pay the costs of the defendant of the proceedings insofar as those costs relate to the plaintiffs' claim to entitlement concerning the property at Walmer Street, Ramsgate. 3. Remit the matter to the Equity Division of the Supreme Court for a new trial concerning the claim of the Appellants to the property at Colson Crescent, Monterey. 4. Respondent to pay costs of the Appellants of the appeal. 5. Reserve to any judge who conducts the new trial concerning the Appellants' claim to the property at Colson Crescent Monterey, the question of the appropriate costs order to make concerning the first trial insofar as it related to the plaintiffs' claim to the property at Colson Crescent, Monterey. 6. Respondent to be granted an indemnity certificate under the Suitors Fund Act 1951 in respect of this appeal. 7. Order that the proceedings concerning the claim of the Appellants to relief in relation to the property at Colson Crescent Monterey be referred for mediation to the Registrar of the Equity Division or some other person nominated by her, PROVIDED THAT if the Appellants and the Respondent notify the Associate to Campbell JA and the Registrar in Equity in writing within 21 days of the date of making these orders that they consent to a mediation of the dispute being held before some other person, the mediation shall be held before that other person. 8. Stay the operation of order 3 until the conclusion of that mediation. 9. Grant liberty to apply to Campbell JA on three days notice concerning the operation of these orders, insofar only as they relate to mediation. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:
ESTOPPEL - equitable estoppel - proprietary estoppel - requirement that plaintiffs' assumption be reasonable - no requirement that representations be sufficiently certain to amount to valid contract - requirement to demonstrate detriment - expectation arising from conduct over a period of time - whether it would be contrary to good conscience to disappoint - APPEAL AND NEW TRIAL - new trial - failure to make specific findings of fact to resolve conflicts of evidence - APPEAL AND NEW TRIAL…
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.
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AGLC
Evans v Evans [2011] NSWCA 92
Case
[2011] NSWCA 92
Decision Date
CaseChat Overview and Summary
The appeal concerned a dispute between the plaintiffs and the defendant regarding entitlement to two properties. The plaintiffs claimed an interest in the property at Walmer Street, Ramsgate, and also claimed entitlement to the property at Colson Crescent, Monterey. The primary legal issues before the Court of Appeal were whether the plaintiffs had established a claim based on equitable estoppel, specifically proprietary estoppel, in relation to the Walmer Street property, and whether the trial judge had made sufficient findings of fact to resolve the conflicting evidence presented concerning the Colson Crescent property. The court also considered the circumstances under which an appellate court should make findings of fact itself, particularly when credibility is in issue.
The Court of Appeal allowed the appeal, setting aside the judgment of the court below. The court found that the plaintiffs had not established their claim to the Walmer Street property, concluding that it would not be contrary to good conscience to disappoint their expectations. In relation to the Colson Crescent property, the court determined that the trial judge had failed to make specific findings of fact necessary to resolve the conflicting evidence, and that the appellate court should not make such findings where credibility was a significant factor. Consequently, the matter concerning the Colson Crescent property was remitted for a new trial.
The court ordered that the plaintiffs' claim to the Walmer Street property be dismissed, with the plaintiffs to pay the defendant's costs in relation to that claim. The proceedings concerning the Colson Crescent property were remitted to the Equity Division for a new trial, with the question of costs for that part of the first trial to be determined by the judge conducting the new trial. The respondent was granted an indemnity certificate under the Suitors Fund Act 1951 for the appeal, and the proceedings concerning the Colson Crescent property were referred for mediation, with a stay on the new trial pending the outcome of that mediation.
Orders
Orders of the court
1. Appeal allowed.
2. Set aside the judgment on the claim and cross-claim in the court below, and in lieu thereof order:
(a) the plaintiffs' claim to any relief relating to the property at Walmer Street, Ramsgate be dismissed;
(b) the plaintiffs pay the costs of the defendant of the proceedings insofar as those costs relate to the plaintiffs' claim to entitlement concerning the property at Walmer Street, Ramsgate.
3. Remit the matter to the Equity Division of the Supreme Court for a new trial concerning the claim of the Appellants to the property at Colson Crescent, Monterey.
4. Respondent to pay costs of the Appellants of the appeal.
5. Reserve to any judge who conducts the new trial concerning the Appellants' claim to the property at Colson Crescent Monterey, the question of the appropriate costs order to make concerning the first trial insofar as it related to the plaintiffs' claim to the property at Colson Crescent, Monterey.
6. Respondent to be granted an indemnity certificate under the Suitors Fund Act 1951 in respect of this appeal.
7. Order that the proceedings concerning the claim of the Appellants to relief in relation to the property at Colson Crescent Monterey be referred for mediation to the Registrar of the Equity Division or some other person nominated by her, PROVIDED THAT if the Appellants and the Respondent notify the Associate to Campbell JA and the Registrar in Equity in writing within 21 days of the date of making these orders that they consent to a mediation of the dispute being held before some other person, the mediation shall be held before that other person.
8. Stay the operation of order 3 until the conclusion of that mediation.
9. Grant liberty to apply to Campbell JA on three days notice concerning the operation of these orders, insofar only as they relate to mediation.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]