Q (a pseudonym) v E Co (a pseudonym) (No 2) - [2021] NSWCA 15

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Q (a pseudonym) v E Co (a pseudonym) (No 2) [2021] NSWCA 15
Hearing dates: On the papers
Decision date: 22 February 2021
Before: Meagher JA; Leeming JA; Payne JA
Decision:
(1) Direct that if either party takes issue with any of the proposed orders, or seeks that further orders be made, they should do so by lodging written submissions (not to exceed 5 pages) with the Associate to Meagher JA within 7 days.

Catchwords:
JUDGMENTS AND ORDERS – variation of reasons – change in circumstances – where appellant died after delivery of reasons but before making of final orders – where proposed relief based on appellant’s expected remaining lifetime – whether to reopen appeal – whether to vary proposed relief on account of appellant’s death
ESTOPPEL – proprietary estoppel – where appeal against successful proprietary estoppel claim dismissed – where defendant now deceased – consequential orders
COSTS – gross sum costs order – Civil Procedure Act 2005 (NSW), s 98(4) – order agreed

Legislation Cited:
Civil Procedure Act 2005 (NSW), s 98(4)
Supreme Court Act 1970 (NSW), s 75A(7), (9)
Trustee Act 1925 (NSW), s 71(1), (2)(l)
Uniform Civil Procedure Rules 2005 (NSW), r 7.10(2)(b)

Cases Cited:
Fletcher Constructions Australia Ltd v Lines Macfarlane & Marshall Pty Ltd (2001) 4 VR 28; [2001] VSCA 167
Q (a pseudonym) v E Co (a pseudonym) [2020] NSWCA 220
Smith v NSW Bar Association (1992) 176 CLR 256; [1992] HCA 36

Category: Consequential orders
Parties: The Estate of Q (Appellant) (Represented pursuant to UCPR, r 7.10(2)(b))
E Co (First Respondent)
EM Co (Second Respondent)
A (Third Respondent)
B (Fourth Respondent)
C (Fifth Respondent)
Representation:
Counsel:
A McInerney SC with N Kabilafkas (Respondents)
Solicitors:
Michael Francis Callanan (Estate Representative)
Armstrong Law Partners (Appellant) (Notice of Ceasing to Act filed 1 December 2020)
MJF Legal Pty Ltd (Respondents)

File Number(s): 2019/165631
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity

Citation:

[2018] NSWSC 442; [2018] NSWSC 646; [2019] NSWSC 429

Date of Decision:

01 May 2019

Before:

Ward CJ in Eq

File Number(s):

2014/198212

Judgment

THE COURT: Judgment in this appeal was delivered on 21 September 2020, and directions made for the parties to attempt to agree short minutes of order giving effect to those reasons: Q (a pseudonym) v E Co (a pseudonym) [2020] NSWCA 220. (These reasons continue to use the pseudonyms adopted by the primary judge and in those reasons.) Producing such agreement became less straightforward as a result of the appellant Q’s death on 8 October 2020 and the decision of the executor of his last known will to renounce probate on 17 November 2020.
On 13 November 2020, the respondents filed a motion seeking orders for the appointment of the (at that time) proposed executor to represent Q’s estate in the proceedings and leave to reopen the appeal to adduce evidence of Q’s death,…

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.

Continue reading Q (a pseudonym) v E Co (a pseudonym) (No 2)

Details

AGLC: Q (a pseudonym) v E Co (a pseudonym) (No 2) [2021] NSWCA 15
Case: [2021] NSWCA 15
Decision Date: 22 February 2021

CaseChat Overview and Summary

The Court of Appeal of New South Wales considered an application for variation of its reasons and proposed orders in the matter of Q (a pseudonym) v E Co (a pseudonym) (No 2). The dispute concerned a proprietary estoppel claim, and the appeal against the primary judge's decision had been dismissed. However, the appellant, Q, had died after the delivery of the appeal judgment but before the making of final orders. The proposed relief in the original judgment was predicated on Q's expected remaining lifetime.

The central legal issues before the court were whether to reopen the appeal in light of the appellant's death and, consequently, whether to vary the proposed relief. The court also considered the implications of the appellant's death for the final orders to be made, particularly in relation to the proprietary estoppel claim that had been upheld.

The court reasoned that the death of the appellant constituted a significant change in circumstances that warranted consideration of the proposed relief. While the appeal itself had been dismissed, the court retained a discretion to vary its orders to reflect the new factual reality. The court acknowledged that the original relief was based on assumptions about the appellant's lifespan, which were no longer valid. The court also noted that the parties had agreed to a gross sum costs order under section 98(4) of the *Civil Procedure Act 2005* (NSW).

The court did not make final orders at that time but instead directed that if either party wished to take issue with the proposed orders or seek further orders, they should lodge written submissions not exceeding five pages with the Associate to Meagher JA within seven days.

Orders

Orders of the court

(1) Direct that if either party takes issue with any of the proposed orders, or seeks that further orders be made, they should do so by lodging written submissions (not to exceed 5 pages) with the Associate to Meagher JA within 7 days.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Q (a pseudonym) v E Co (a pseudonym) (No 2) [2021] NSWCA 15
Hearing dates:	On the papers
Decision date:	22 February 2021
Before:	Meagher JA; Leeming JA; Payne JA
Decision:	(1) Direct that if either party takes issue with any of the proposed orders, or seeks that further orders be made, they should do so by lodging written submissions (not to exceed 5 pages) with the Associate to Meagher JA within 7 days.
Catchwords:	JUDGMENTS AND ORDERS – variation of reasons – change in circumstances – where appellant died after delivery of reasons but before making of final orders – where proposed relief based on appellant’s expected remaining lifetime – whether to reopen appeal – whether to vary proposed relief on account of appellant’s death ESTOPPEL – proprietary estoppel – where appeal against successful proprietary estoppel claim dismissed – where defendant now deceased – consequential orders COSTS – gross sum costs order – Civil Procedure Act 2005 (NSW), s 98(4) – order agreed
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 98(4) Supreme Court Act 1970 (NSW), s 75A(7), (9) Trustee Act 1925 (NSW), s 71(1), (2)(l) Uniform Civil Procedure Rules 2005 (NSW), r 7.10(2)(b)
Cases Cited:	Fletcher Constructions Australia Ltd v Lines Macfarlane & Marshall Pty Ltd (2001) 4 VR 28; [2001] VSCA 167 Q (a pseudonym) v E Co (a pseudonym) [2020] NSWCA 220 Smith v NSW Bar Association (1992) 176 CLR 256; [1992] HCA 36
Category:	Consequential orders
Parties:	The Estate of Q (Appellant) (Represented pursuant to UCPR, r 7.10(2)(b)) E Co (First Respondent) EM Co (Second Respondent) A (Third Respondent) B (Fourth Respondent) C (Fifth Respondent)
Representation:	Counsel: A McInerney SC with N Kabilafkas (Respondents) Solicitors: Michael Francis Callanan (Estate Representative) Armstrong Law Partners (Appellant) (Notice of Ceasing to Act filed 1 December 2020) MJF Legal Pty Ltd (Respondents)
File Number(s):	2019/165631
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity Citation: [2018] NSWSC 442; [2018] NSWSC 646; [2019] NSWSC 429 Date of Decision: 01 May 2019 Before: Ward CJ in Eq File Number(s): 2014/198212