Phillip Segal v Elie Barel

[2013] HCASL 211

PHILLIP SEGAL

v

ELIE BAREL

[2013] HCASL 211
S136/2013

1. The parties were the registered proprietors of a parcel of land held as tenants in common in equal shares. 

2. 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.

3. 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.

4. 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.

5. 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