Mendonca v Tonna

[2020] NSWCA 224

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Mendonca v Tonna [2020] NSWCA 224

Hearing dates:

21 September 2020

Decision date:

21 September 2020

Before:

Basten JA

Decision:

(1)   Dismiss the application for a stay being order (4) in the applicant’s amended notice of motion filed on 4 September 2020.

(2)   Order the applicant to pay the costs of today.

Catchwords:

PRACTICE AND PROCEDURE – application for stay – stay of orders of primary judge – application to reopen judgment dismissing appeal – application to rely on evidence not proffered at trial or on appeal relating to credibility of respondent

PRACTICE AND PROCEDURE – application for stay – stay of orders of primary judge – application for special leave to appeal to High Court of Australia – whether stay necessary to protect subject-matter of proposed appeal – whether substantial prospect that special leave to appeal will be granted

Legislation Cited:

Judiciary Act 1903 (Cth), s 35A

Cases Cited:

Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd [No 1] (1986) 161 CLR 681; [1986] HCA 84

Mendonca v Tonna [2020] NSWCA 196

Category:

Procedural and other rulings

Parties:

Renuka Maria Mendonca (Applicant)
Mark Julian Tonna (First Respondent)
Lorraine Mary Tonna (Second Respondent)

Representation:

Counsel:
Applicant self-represented
Mr P Newton / Mr J Gatland (Respondents)

Solicitors:
Adams & Partners Lawyers (Respondents)

File Number(s):

2020/13642

 Decision under appeal 

Court or tribunal:

Supreme Court

Jurisdiction:

Equity Division

Citation:

[2019] NSWSC 1849; [2020] NSWSC 306

Date of Decision:

20 December 2019; 25 March 2020

Before:

Ward CJ in Eq

File Number(s):

2016/182075; 2017/292576

Judgment

1. BASTEN JA: The applicant, Renuka Maria Mendonca, has sought special leave to appeal in the High Court from a judgment of this Court delivered on 26 August 2020. [1] That judgment dismissed an appeal from a judgment and orders of Ward CJ in Eq in relation to a property dispute between the applicant and two other parties. [2] The dispute concerned the ownership of a property at Galston on the north‑western outskirts of Sydney. The applicant and the respondents both contributed to the purchase price of the property which was registered in the applicant's name. The primary judge held that the applicant held the property on a resulting trust in proportions referable to the payments made in purchasing the property. The applicant claimed, unsuccessfully at trial, that the respondents occupied the property pursuant to a residential tenancy agreement. That issue had been agitated in the Civil and Administrative Tribunal on the basis that there was such an agreement.

   1. Mendonca v Tonna [2020] NSWCA 196.

   2. Tonna v Mendonca [2019] NSWSC 1849; Tonna v Mendonca (No 2) [2020] NSWSC 306.

2. Those proceedings were transferred to the Supreme Court and formed part of the proceedings in the Equity Division. The applicant seeks to challenge that transfer on the basis that the Equity Division had no jurisdiction to make an order in relation to a residential tenancy and could not terminate such a…