Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Proietti v Proietti [2022] NSWCA 234 Hearing dates: 14 October 2022 Date of orders: 17 November 2022 Decision date: 17 November 2022 Before: Mitchelmore JA at [1];
Basten AJA at [120];
Griffiths AJA at [121].Decision: (1) Dismiss the Notice of Motion filed on 25 July 2022 with costs.
(2) Dismiss the appeal.
(3) Set aside order 10 made by the primary judge on 7 July 2022 and, in lieu thereof, order that Orders 1, 2, 4 and 8 be stayed for 28 days from the date of this judgment.
(4) Order that the appellant pay the respondent’s costs in this Court.
Catchwords: APPEALS – procedural fairness – property – proceedings commenced by summons for the appointment of trustees under s 66G of the Conveyancing Act 1919 (NSW) – where self-represented defendant consented to directions in Online Court, and made no applications prior to hearing – where large parts of defendant’s affidavit struck out – whether lack of pleadings or mediation constituted denial of procedural fairness – whether “further hearing” should have been granted – call for “substantive guidance” from Court – no denial of procedural fairness
EVIDENCE – affidavit evidence – proceedings for the appointment of trustees under s 66G of the Conveyancing Act 1919 (NSW) – where large parts of defendant’s affidavit struck out, including based on speculation as to deceased’s state of mind about change to will – whether statement made by deceased’s former solicitor, that he did not change will, relied upon to prove that fact – no applicable exception to hearsay rule – evidence properly rejected or treated as submissions
APPEALS – bias rule – actual or apprehended – proceedings for the appointment of trustees under s 66G of the Conveyancing Act 1919 (NSW) – where primary judge described case as “unremarkable” but for defences raised – where defendant alleged actual and apprehended bias based, principally, on findings against him “on nearly every single issue” – Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 42; [2011] HCA 48 – no actual or apprehended bias demonstrated
LAND LAW – co-ownership – statutory trust for partition – appointment of trustees – where defendant resisted orders for the sale of real property under s 66G of the Conveyancing Act 1919 (NSW) based on promissory estoppel and contract – where primary judge made finding of fact, based on credibility, that there was no agreement between parties not to sell before 2023 – where defendant relied on absence of evidence in text messages with plaintiff concerning pre-2023 sale – no sound foundation for challenge to finding on appeal
LAND LAW – co-ownership – statutory trust for partition – appointment of trustees – where defendant resisted orders for the sale of real property under s 66G of the Conveyancing Act 1919 (NSW) based on proprietary estoppel – where defendant alleged plaintiff owed duty to disclose change to will, removing clause allowing plaintiff continued residency for four years…
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- AGLC
- Proietti v Proietti [2022] NSWCA 234
- Case
- [2022] NSWCA 234
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the Court of Appeal were whether the primary judge had denied the defendant procedural fairness, whether certain evidence had been improperly rejected, and whether the primary judge had demonstrated actual or apprehended bias. Further issues included the proper application of principles relating to statutory trusts for partition, promissory estoppel, contract, and proprietary estoppel in the context of co-ownership disputes, as well as the admissibility of further evidence on appeal.
The Court of Appeal found no denial of procedural fairness, noting that the defendant, who was self-represented, had consented to directions in the Online Court and made no applications prior to the hearing. Large parts of the defendant's affidavit were struck out, including material based on speculation about the deceased's state of mind and hearsay evidence regarding the deceased's will, which the court found was properly rejected. The court also rejected claims of actual or apprehended bias, finding that the primary judge's comments were not indicative of bias. The defendant's arguments based on promissory estoppel, contract, and proprietary estoppel were also dismissed, with the court upholding the primary judge's findings of fact regarding the absence of an agreement not to sell before 2023 and the speculative nature of the defendant's "realisation" about improper pressure.
The Court of Appeal dismissed the Notice of Motion and the appeal, ordering that the appellant pay the respondent's costs. However, it set aside one specific order made by the primary judge and, in lieu thereof, ordered a stay of certain other orders for 28 days from the date of judgment.
Orders
Orders of the court
(1) Dismiss the Notice of Motion filed on 25 July 2022 with costs.
(2) Dismiss the appeal.
(3) Set aside order 10 made by the primary judge on 7 July 2022 and, in lieu thereof, order that Orders 1, 2, 4 and 8 be stayed for 28 days from the date of this judgment.
(4) Order that the appellant pay the respondent’s costs in this Court.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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