Grant v Grant - [2020] NSWCA 328

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Grant v Grant [2020] NSWCA 328
Hearing dates: 7 and 14 December 2020
Date of orders: 14 December 2020
Decision date: 14 December 2020
Before: Macfarlan JA
Decision:
(1)   Direct that the following certificate of title which is presently in the possession of the Court be retained: the certificate of title to the land comprised in folio identifier 62/235311 being 2 Linda Street Killcare NSW (“the Killcare property”).
(2)   Stay the orders made in the Equity Division on 24 September 2020 on the following conditions:
(a)   That the second appellant provides to the respondent a written undertaking to the Court to keep the Killcare property insured, not to encumber it, not to damage it, to keep it in a good state of repair and not to rent it to any other person for any period in excess of 6 weeks.
(b)   That the first and second appellants each provide to the respondent a written undertaking to the Court that they will not dispose of any of their assets, or any interest in any asset, other than for payment of ordinary living expenses, maintenance of the Killcare property or legal expenses to a solicitor in connection with the present proceedings.
(3)   Order that the costs of the appellants’ motion for a stay be costs in the appeal.
(4)   I refer the parties to the Registrar in Court 12B at 2.30pm today for the purpose of fixing a hearing date and making directions. If possible, the parties should notify their available dates for February to April 2021 to the Registrar in advance. I note that Ms Grant will not be able to appear at that time but will nevertheless send her available dates for those months to the Registrar as soon as possible.

Catchwords:
APPEALS – procedure – stay pending appeal – argument that appeal will be stultified if enforcement of judgment permitted – stay granted on terms providing reasonable protection to respondent

Category: Procedural and other rulings
Parties: Nerez Gwynneth Grant (First Appellant)
Kashaya Williams (Second Appellant)
Seth Garran Niels Grant (Respondent)
Representation:
Counsel:
Ms N Grant (self-represented) (Appellants)
Mr N Avery-Williams (Respondent)
Solicitors:
Teece Hodgson & Ward (Respondent)

File Number(s): 2020/287951
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity

Citation:

[2020] NSWSC 1288

Date of Decision:

24 September 2020

Before:

Slattery J

File Number(s):

2017/00316190; 2018/00139174

Judgment

After a 7 day hearing in the Equity Division, Slattery J made orders in favour of the present respondent, Mr Seth Grant representing the estate of the late Dr Alan Grant, against the present appellants, Ms Nerez Grant and Ms Kashaya Grant ([2020] NSWSC 1288). His Honour found inter alia that the first appellant engaged with the second appellant in a dishonest and fraudulent scheme to transfer the whole of Dr Grant’s interest in a property at Killcare to the second appellant in return for the first appellant receiving from the second appellant a…

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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Details

Case: [2020] NSWCA 328
Decision Date: 14 December 2020

CaseChat Overview and Summary

In *Grant v Grant*, the appellants sought a stay of orders made in the Equity Division on 24 September 2020, pending the determination of their appeal. The central dispute revolved around the appellants' contention that the appeal would be rendered nugatory if the judgment were enforced without a stay.

The primary legal issue before Macfarlan JA was whether to grant a stay of the Equity Division's orders. This required the court to consider the potential for the appeal to be stultified by the enforcement of the judgment and to balance the interests of both the appellants and the respondent in determining appropriate conditions for any stay.

Macfarlan JA granted the stay on terms designed to provide reasonable protection to the respondent. These terms included requiring the appellants to undertake to keep a specific property insured, not to encumber or damage it, to maintain it in good repair, and not to rent it for periods exceeding six weeks. Furthermore, both appellants were ordered to provide undertakings not to dispose of any assets, except for ordinary living expenses, property maintenance, or legal costs related to the proceedings. The costs of the motion for the stay were made costs in the appeal, and directions were given for fixing a hearing date.

Orders

Orders of the court

(1) Direct that the following certificate of title which is presently in the possession of the Court be retained: the certificate of title to the land comprised in folio identifier 62/235311 being 2 Linda Street Killcare NSW (“the Killcare property”).

(2) Stay the orders made in the Equity Division on 24 September 2020 on the following conditions:

(a) That the second appellant provides to the respondent a written undertaking to the Court to keep the Killcare property insured, not to encumber it, not to damage it, to keep it in a good state of repair and not to rent it to any other person for any period in excess of 6 weeks.

(b) That the first and second appellants each provide to the respondent a written undertaking to the Court that they will not dispose of any of their assets, or any interest in any asset, other than for payment of ordinary living expenses, maintenance of the Killcare property or legal expenses to a solicitor in connection with the present proceedings.

(3) Order that the costs of the appellants’ motion for a stay be costs in the appeal.

(4) I refer the parties to the Registrar in Court 12B at 2.30pm today for the purpose of fixing a hearing date and making directions. If possible, the parties should notify their available dates for February to April 2021 to the Registrar in advance. I note that Ms Grant will not be able to appear at that time but will nevertheless send her available dates for those months to the Registrar as soon as possible.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Grant v Grant [2020] NSWCA 328
Hearing dates:	7 and 14 December 2020
Date of orders:	14 December 2020
Decision date:	14 December 2020
Before:	Macfarlan JA
Decision:	(1) Direct that the following certificate of title which is presently in the possession of the Court be retained: the certificate of title to the land comprised in folio identifier 62/235311 being 2 Linda Street Killcare NSW (“the Killcare property”). (2) Stay the orders made in the Equity Division on 24 September 2020 on the following conditions: (a) That the second appellant provides to the respondent a written undertaking to the Court to keep the Killcare property insured, not to encumber it, not to damage it, to keep it in a good state of repair and not to rent it to any other person for any period in excess of 6 weeks. (b) That the first and second appellants each provide to the respondent a written undertaking to the Court that they will not dispose of any of their assets, or any interest in any asset, other than for payment of ordinary living expenses, maintenance of the Killcare property or legal expenses to a solicitor in connection with the present proceedings. (3) Order that the costs of the appellants’ motion for a stay be costs in the appeal. (4) I refer the parties to the Registrar in Court 12B at 2.30pm today for the purpose of fixing a hearing date and making directions. If possible, the parties should notify their available dates for February to April 2021 to the Registrar in advance. I note that Ms Grant will not be able to appear at that time but will nevertheless send her available dates for those months to the Registrar as soon as possible.
Catchwords:	APPEALS – procedure – stay pending appeal – argument that appeal will be stultified if enforcement of judgment permitted – stay granted on terms providing reasonable protection to respondent
Category:	Procedural and other rulings
Parties:	Nerez Gwynneth Grant (First Appellant) Kashaya Williams (Second Appellant) Seth Garran Niels Grant (Respondent)
Representation:	Counsel: Ms N Grant (self-represented) (Appellants) Mr N Avery-Williams (Respondent) Solicitors: Teece Hodgson & Ward (Respondent)
File Number(s):	2020/287951
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity Citation: [2020] NSWSC 1288 Date of Decision: 24 September 2020 Before: Slattery J File Number(s): 2017/00316190; 2018/00139174