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Sakellis v Vourlos

Sakellis v Vourlos

Case [2018] NSWSC 1928 19 December 2018

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Sakellis v Vourlos [2018] NSWSC 1928
Hearing dates: 13 December 2018
Date of orders: 19 December 2018
Decision date: 19 December 2018
Jurisdiction: Common Law
Before: Davies J
Decision:
(1) Dismiss the plaintiff’s amended notice of motion filed 13 December 2018.
(2) The plaintiff is to pay the defendant’s costs of the motion.
Catchwords: CIVIL PROCEDURE – summary disposal – judgment for plaintiff – striking out of defence sought in the alternative – whether no reasonable defence – where defendant relied on proprietary estoppel to defend proceedings for possession of real property – whether evidence capable of establishing detrimental reliance –necessary to make findings about representations and availability of relief sought by defendant at trial – no basis for summary disposal or striking out
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) r 14.28
Cases Cited: Bushby v Dixon Holmes Du Pont Pty Ltd (2010) 78 NSWLR 111; [2010] NSWSC 234
Simmons v New South Wales Trustee and Guardian [2014] NSWCA 405
Sullivan v Sullivan [2006] NSWCA 312
Watson v Foxman (1995) 49 NSWLR 315
Texts Cited: Nil
Category: Procedural and other rulings
Parties: Angela Sakellis (Plaintiff)
Constantinos Vourlos (Defendant)
Representation:
Counsel:
J Young (Plaintiff)
T Liu (Defendant)
Solicitors:
Sparke Helmore Lawyers (Plaintiff)
Clayton Utz (Defendant)

File Number(s): 2018/177144
Publication restriction: Nil

Judgment

The plaintiff is the owner of a property at 578 Pittwater Road, North Manly. The defendant was married to the plaintiff’s niece who died on 29 July 2010. The defendant has occupied the North Manly property since either June/July 2015 (according to the plaintiff) or since mid-2016 (according to the defendant). The precise date does not matter for present purposes.
By letters dated 18 December 2017, 1 February 2018 and 13 April 2018, solicitors acting for the plaintiff wrote to the defendant requiring him to vacate the property by dates specified in those letters. The defendant remains in the property.
The plaintiff commenced proceedings on 6 June 2018 seeking possession of the property.
The defendant defends the proceedings on the basis of a proprietary estoppel. He asserts that the plaintiff represented that he, his wife and children, could live in a property that she owned at 11A Edgecliff Esplanade, Seaforth for the rest of their lives. After some problems between the defendant and his son, the defendant said that the plaintiff represented that he could move to another of her properties being the North Manly property. He understood that his right to live there was on the same basis as had been represented to him in respect of the Seaforth property.
He points to two aspects of detriment that he alleges gives rise to the estoppel. The first is that he gave up low cost subsidised housing that he and his family were renting in North Ryde in order to move to the Seaforth property on the basis of the plaintiff’s representation. Secondly, he says that he has expended various amounts of money and labour on both the…

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 Sakellis v Vourlos

Details

AGLC: Sakellis v Vourlos [2018] NSWSC 1928
Case: [2018] NSWSC 1928
Decision Date: 19 December 2018

CaseChat Overview and Summary

In the Supreme Court of New South Wales, Sakellis v Vourlos involved a dispute over the possession of real property. The plaintiff sought an order for possession of a property against the defendant, who responded by claiming proprietary estoppel as a defence. The defendant argued that the plaintiff had made representations that led the defendant to believe he would receive a beneficial interest in the property. The plaintiff sought to have the defence struck out on the basis that it was frivolous or had no reasonable prospect of success.

The legal issues before the court were whether the defendant's defence of proprietary estoppel could be struck out on the basis that it was frivolous, and if the court could make findings on the availability of relief sought by the defendant without a full hearing. The court had to determine whether the evidence was capable of establishing the elements of proprietary estoppel, particularly the requirement of detrimental reliance. The court also had to consider whether it was appropriate to make findings about the representations and the availability of relief sought by the defendant at this stage of the proceedings.

The court held that the defendant's defence of proprietary estoppel could not be struck out summarily, as the evidence was capable of establishing the necessary elements of detrimental reliance. The court found that the availability of relief sought by the defendant required the court to make findings about the representations made by the plaintiff, which could not be done without a full hearing. The court emphasised that summary disposal was only appropriate where the defence was plainly frivolous or had no reasonable prospect of success. The court also noted that the defendant's defence was not necessarily hopeless, as it was possible that the defendant could establish the necessary elements of proprietary estoppel at trial.

The court dismissed the plaintiff's application for summary disposal and striking out of the defence. The case was to proceed to a full hearing to determine the availability of relief sought by the defendant and whether the defendant's defence of proprietary estoppel was successful.

Orders