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.