Proietti v Proietti

[2022] NSWCA 268

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Proietti v Proietti [2022] NSWCA 268

Hearing dates:

12 December 2022

Date of orders:

14 December 2022

Decision date:

14 December 2022

Before:

Macfarlan JA

Decision:

Dismiss the stay extension application, with costs.

Catchwords:

APPEAL — application for extension of stay pending determination by High Court of application for special leave to appeal — no significant prospect of obtaining special leave — extension of stay refused

Legislation Cited:

Conveyancing Act 1919 (NSW), s 66G

Judiciary Act 1903 (Cth), s 35A

Uniform Civil Procedure Rules 2005 (NSW), r 51.44

Category:

Procedural rulings

Parties:

Philip Proietti (Applicant)
Peter Proietti (Respondent)

Representation:

Counsel:
Applicant (Self-represented)
A J Paterson (Respondent)

Solicitors:
Maatouks Law Group (Respondent)

File Number(s):

2022/217751

 Decision under appeal 

Court or tribunal:

Court of Appeal

Citation:

[2022] NSWCA 234

Date of Decision:

17 November 2022

Before:

Mitchelmore JA; Basten AJA; Griffiths AJA

File Number(s):

2022/217751

Judgment

1. MACFARLAN JA: This is an application for the extension of a stay pending the determination by the High Court of an application by Mr Philip Proietti (“the Applicant”) for special leave to appeal under s 35A of the Judiciary Act 1903 (Cth) (see r 51.44 of the Uniform Civil Procedure Rules 2005 (NSW)). A stay for a limited period only of orders made in the Equity Division, was granted by this Court on 17 November 2022 to give effect to its judgment of that date in Proietti v Proietti [2022] NSWCA 234 (Mitchelmore JA, Basten AJA and Griffiths AJA).

2. The judgment was concerned with proceedings commenced by Mr Peter Proietti, who is the Applicant’s brother, in the Equity Division seeking orders under s 66G of the Conveyancing Act 1919 (NSW) for the appointment of trustees for the sale of a Marsfield property of which the two brothers are registered proprietors. The Applicant resisted the making of the orders on the basis of proprietary estoppel, promissory estoppel and contract contentions. His argument was that he was entitled to occupy the Marsfield property as his home for a period of four years from the death on 28 November 2019 of his and his brother’s mother. He sought in the proceedings to rely inter alia upon a 2015 unsigned form of will in which there was reference to such an entitlement. There was no similar reference in the will that their mother subsequently signed in 2016. By a detailed judgment of 30 June 2022, Kunc J rejected the Applicant’s contentions and made relevant orders including an order under s 66G of the Conveyancing Act and an order that the Applicant vacate the property.

3. The Applicant then appealed to this Court relying on four main grounds, as follows:

1. That he was denied procedural fairness because there was in the proceedings below an absence, or at least deficiency, of direction hearings, pleadings, a mediation, and directions for the provision of written submissions, which allegedly placed him in a position of disadvantage in presenting his opposition to the s 66G order.

2. That he was not given the opportunity to object to his brother’s affidavit and not given a fair opportunity to address the objections taken to his own affidavit, which was to a significant extent ruled inadmissible.

3. That Kunc J’s decision was affected by actual and apprehended bias, reflected in his Honour finding against the Applicant “on nearly every single issue”; and

4. That Kunc J erred in not finding that the Applicant’s brother had a duty to tell him about the unsigned 2015 will. The Applicant asserted that his brother exerted undue influence on their mother to induce her to sign the 2016 will. He also asserted that there was an agreement between the brothers that the Marsfield property would not be sold before 2023, giving rise to contract and promissory estoppel defences.

4. This Court dealt with these and other issues in its detailed judgment of 17 November 2022.

5. Before me, the Applicant’s submissions largely constituted a repetition of arguments with which this Court dealt in its judgment, with little, if any, regard being paid to the Court’s reasoning.

6. I have read the Applicant’s application for special leave to appeal and carefully considered the oral submissions he made to me, but I can see no point that is arguable in his favour and that might give him a prospect of obtaining special leave to appeal. That includes his assertions of procedural unfairness on the part of this Court in hearing his appeal. These are completely unsubstantiated and are typified in their lack of merit by his following contention concerning the judgment:

“The judgement is written solely by Justice Mitchelmore with the other two agreeing by signature. It is he [sic] who I deemed to be biased [as, a result of the judge’s behaviour during oral argument] and it is difficult to believe all the judges would have had the same view when they would seem controversial to say the least [sic]. It is on this basis that I form the view of court bias, and thus the conclusion of court dysfunctionality”.

7. In light of what I see as the absence of merit in the proposed appeal to the High Court, my view is that the Applicant has no significant prospect of obtaining a grant of special leave to appeal. I have accordingly decided that his application for a stay extension should be refused, with costs.

8. I add that one matter that would arguably assist him on the balance of convenience is that if special leave were granted there would be a real prospect that his appeal would not be heard and determined by the High Court prior to the expiration of 4 years from his mother’s death, that is by 28 November 2023, which is at the end of the period in respect of which he claims relief. This would render the appeal nugatory, save as to costs, if there were no stay of the order for him to give up possession of the property. On the other hand, the fact that the relief he seeks is only related to that four year period, which is to expire in some 11 or 12 months, illustrates that there is only a limited amount at stake in the High Court appeal the Applicant seeks to bring. I have taken these matters into account in exercising my discretion to dismiss the stay extension application.

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Decision last updated: 14 December 2022