Phillip Segal v Elie Barel - [2013] HCASL 211

PHILLIP SEGAL
v
ELIE BAREL
[2013] HCASL 211
S136/2013

The parties were the registered proprietors of a parcel of land held as tenants in common in equal shares.
On 2 November 2012, the Supreme Court of New South Wales (Pembroke J) made orders appointing trustees to partition the land and to convey one lot to each of the applicant and the respondent. Pembroke J declined to order that the respondent pay an "occupation fee" to the applicant. His Honour observed, in reasons dated 21 September 2012, that although the respondent and his family had lived in a house on the land for some years, there had been no relevant exclusion of the applicant to warrant the payment of such a fee.
The Court of Appeal upheld Pembroke J's decision to reject the applicant's claim to an occupation fee. The applicant did not challenge Pembroke J's factual finding that there had been no relevant exclusion of the applicant. He instead argued that his claim was supported by the principle that an occupation fee is payable in circumstances where a co‑owner in occupation claims an allowance for improvements – a principle not addressed by Pembroke J. Barrett JA, with whom McColl JA and Preston CJ of LEC agreed, held that the applicant should not be permitted to advance an argument that was not raised in the pleadings or during the proceedings below.
The applicant now seeks special leave to appeal so that he may continue to press arguments concerning his claim to an occupation fee. The application does not identify any factual basis for this claim, nor does it demonstrate any error in the Court of Appeal's decision that the applicant should be bound by his conduct of the case at first instance. No question of principle arises for determination. Special leave is refused.
Pursuant to r 41.11.1 we direct the Registrar to draw up, sign and seal an order dismissing the application with costs.

S.M. Kiefel
13 December 2013 P.A. Keane

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: [2013] HCASL 211
Decision Date

CaseChat Overview and Summary

Phillip Segal and Elie Barel, the co-owners of a parcel of land, were involved in a legal dispute regarding the partition and sale of their property. The matter was initially heard in the Supreme Court of New South Wales, where Pembroke J ruled on 2 November 2012, ordering the appointment of trustees to partition the land and convey one lot to each party. The judge also declined to order Barel to pay Segal an "occupation fee" due to the lack of relevant exclusion of Segal. Segal then appealed to the Court of Appeal, but his argument that an occupation fee should be paid if a co-owner claims an allowance for improvements was rejected. The Court of Appeal held that Segal should be bound by his conduct during the initial proceedings.

The legal issues in the case centred on the validity of Segal's claim for an occupation fee and whether the principle he cited was applicable. Segal argued that the Court of Appeal should have considered his argument about the allowance for improvements, despite it not being raised in the pleadings or during the initial proceedings. The High Court was asked to determine whether Segal's special leave application to appeal should be granted, considering the lack of factual basis for his claim and the Court of Appeal's decision on procedural grounds.

The High Court, led by Kiefel and Keane, found that Segal's application did not identify any factual basis for his claim, nor did it demonstrate any error in the Court of Appeal's decision. The Court concluded that no question of principle arose for determination, and thus, Segal's application for special leave to appeal was refused. The Court also directed the Registrar to prepare an order dismissing Segal's application with costs. This decision was made on 13 December 2013.

Orders