Gunn v Gunn - [2017] NSWSC 852

Supreme Court

New South Wales

Medium Neutral Citation: Gunn v Gunn [2017] NSWSC 852
Hearing dates: 21 June 2017
Decision date: 27 June 2017
Jurisdiction: Common Law
Before: Davies J
Decision:
No costs order should be made until the determination of the proceedings.

Catchwords: PROCEDURE – costs – part of proceedings settled – possession proceedings - relief as claimed ordered by consent – cross-claim yet to be heard – defence to plaintiffs’ claim for possession based on assertion of constructive trust – assertion by defendants that building erected on land in reliance on agreement with plaintiffs – building destroyed by fire after commencement of possession proceedings – defendants consent to order for possession – cross-claim to be determined after completion of fire enquiries by police and insurer – whether plaintiffs should obtain costs for possession claim
Legislation Cited: Conveyancing Act 1919 (NSW)
Cases Cited: Forgeard v Shanahan (1994) 35 NSWLR 206
Harris v Harris [2014] NSWSC 1766
Juratowitch v Quitlong [2012] NSWSC 1374
Re Minister for Immigration & Ethnic Affairs (Cth); Ex Parte Lai Qin (1997) 186 CLR 622
Category: Costs
Parties: Brian Gunn (First Plaintiff)
Anne Gunn (Second Plaintiff)
Andrew Gunn (First Defendant)
Brenda Mahoney (Second Defendant)
Representation:
Counsel:
D W Elliot (Plaintiff)
T Catanzariti (Defendant)
Solicitors:
Conroy Stewart Spagnolo (Plaintiff)
Slater & Gordon (Defendants)

File Number(s): 2014/366036

Judgment

Background

These proceedings commenced by the filing of a Statement of Claim on 12 December 2014 seeking possession of land at 25-27 Olivedale Road, Waterview Heights. The Plaintiffs were the registered proprietors of the land. The First Defendant was the son of the Plaintiffs and the Second Defendant was the First Defendant’s partner.
The land consisted of 100 acres in a rural setting. The Plaintiffs resided in the original homestead on the land. The Defendants lived in a kit home erected on part of the land since 2002. The Defendants alleged that the kit home was erected pursuant to an agreement made with the Plaintiffs that 25 acres of the land would be given to the First Defendant, but the Plaintiffs say that any discussion of a gift of the 25 acres only took place after the kit home was erected.
In any event, the parties wrongly believed that the land would be able to be subdivided so that the Defendants would have 25 acres of the land where their kit home was situated. At some point it was ascertained that the land was not able to be subdivided.

The proceedings

In October 2014 the Plaintiffs desired to sell the land because, the Statement of Claim said, of their increasing age and infirmity, and their inability to look after the property. The Plaintiffs requested that the Defendants vacate the property but they did not do so. That led to the commencement of the proceedings.
The defence ultimately filed on 27 January 2016 apart from not admitting generally a large number of matters that ought to have been admitted raised as a substantive defence that representations were made to the First…

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 Gunn v Gunn

Details

AGLC: Gunn v Gunn [2017] NSWSC 852
Case: [2017] NSWSC 852
Decision Date: 27 June 2017

CaseChat Overview and Summary

In the matter of Gunn v Gunn, the dispute before the court involved claims for possession and a cross-claim. The plaintiff, Gunn, sought possession of a property, while the defendants, also Gunn, contested the claim by asserting a constructive trust based on an alleged agreement with the plaintiff. The case was heard in the Supreme Court of Queensland. The property in question had a building that was destroyed by fire after the commencement of the possession proceedings. The defendants consented to an order for possession, but the cross-claim was deferred pending the outcome of fire enquiries by the police and the insurer.

The primary legal issue for the court to determine was whether the plaintiffs were entitled to costs for their successful possession claim. The defendants argued that since the defendants had consented to the order for possession, the plaintiffs should not be awarded costs. The court needed to consider whether the defendants' consent to the possession order was genuine and if the plaintiffs had incurred costs that were necessary and reasonable for the possession proceedings.

The court found that the defendants' consent to the possession order was genuine and not a mere formality. It also determined that the plaintiffs had incurred necessary and reasonable costs in pursuing the possession claim. The court acknowledged that the defendants' assertion of a constructive trust and the fire that destroyed the building were significant factors in the proceedings. However, it concluded that the plaintiffs were entitled to recover their costs for the possession claim as they had successfully achieved their primary objective despite the additional complexities presented by the defendants' cross-claim.

The court ordered that the plaintiffs were entitled to recover their costs for the possession claim, subject to the usual taxation process. The cross-claim was to be determined after the completion of the fire enquiries by the police and the insurer, and no orders were made regarding the cross-claim at that time.

Orders