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

1. 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 life interest in the Killcare property.

2. By notice of motion filed on 6 October 2020 the first appellant seeks a stay of the orders made by Slattery J, until determination of her appeal. It is apparent from the material before me that the first appellant has or at least claims to have virtually no assets. She is concerned that if enforcement is permitted, she will be unable to pursue her appeal. By inference, the second appellant is in the same position.

3. I have concluded that, to ensure that the appeal is not stultified, a stay should be granted but on terms that provide reasonable protection to the respondent.

4. Adapting the form of orders sought by the parties, I make the following orders until further order or until earlier disposition of the appeal to this 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:

1. 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.

2. 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.

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Decision last updated: 14 December 2020