Legal Research
Cases
Sandri v O'Driscoll

Sandri v O'Driscoll

Case [2013] VSCA 281 8 October 2013

Stay of Proceedings

Arguable Grounds of Appeal

Special Circumstances

Civil Litigation & Procedure

Type to search within this case.

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S APCI 2013 0060

STEPHEN SANDRI	Applicant
STEPHEN SANDRI	v
PAUL ROBERT O’DRISCOLL (as personal representative of the estate of Francis Dean Humphries deceased)	First Respondent
	and
ELIZABETH ELLEN O’DRISCOLL	Second Respondent

---

JUDGES	TATE and SANTAMARIA JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	27 September 2013
DATE OF JUDGMENT	8 October 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 281
JUDGMENT APPEALED FROM	Sandri v O’Driscoll & Anor [2013] VCC 139 (Judge Ginnane)

---

PRACTICE AND PROCEDURE – Stay – Application for stay of orders – Order that family home be sold and proceeds distributed between parties – Order that plaintiff make payment to estate of father-in-law – Supreme Court Rules O64.25 – Whether success on appeal rendered nugatory – Whether arguable grounds of appeal – Whether special circumstances – Application granted.

---

Appearances:	Counsel	Solicitors
For the Applicant	Mr R N Cameron	Russell Kennedy
For the Respondents	Mr B L Reilly	Parke Lawyers

TATE JA:

For the reasons stated by Santamaria JA, I agree that the orders made on 27 March 2013 and 2 May 2013 should be stayed pending the hearing and determination of the appeal.

SANTAMARIA JA:

The facts found below

The facts that are the subject of dispute are complex. What follows is only a brief summary based on the findings of the trial judge.[1]
[1]Sandri v O’Driscoll & Anor [2013] VCC 139 (‘Reasons’).

Francis Dean (Frank) Humphries (‘Mr Humphries’) and Aileen Elizabeth Humphries (‘Mrs Humphries’) lived at 30 Bayview Street, Williamstown (‘the Williamstown property’). They were the parents of four children: two sons and two daughters. Their third child was Aileen Mary (‘Mrs Sandri’). She married Stephen Sandri (‘Mr Sandri’). Their fourth child is Elizabeth Ellen (‘Mrs O’Driscoll’). She is married to Paul Robert O’Driscoll (‘Mr O’Driscoll’).

Around 1999, Mr and Mrs Sandri began discussions with the Humphries with a view to moving into the Williamstown property, renovating it and caring for the Humphries until their deaths.

Mr Sandri claimed that, in consideration for the selling of their existing Altona property, the demolition of the old house and the construction of a new house on the Williamstown property and their taking over the care of the Humphries in their old age, the Humphries had promised that the Sandris would become joint proprietors of the Williamstown property and, thus, its sole owners on the death of the last surviving of Mr and Mrs Humphries.

There was evidence of various attempts to document the agreement. Early drafts provided for the sale of the whole of the Williamstown property to the Sandris

with a lower than market price in consideration of the Humphries being entitled to live in an extension to that property.

In May 2001, the Sandris sold their Altona house with settlement to take place in August 2001.

Between January 2002 and June 2002, the Williamstown property was valued for the purposes of the parties and for those of a mortgagee.

In the second half of 2001, plans were developed for…

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 Sandri v O'Driscoll

Details

AGLC: Sandri v O'Driscoll [2013] VSCA 281
Case: [2013] VSCA 281
Decision Date: 8 October 2013

CaseChat Overview and Summary

In the case of Sandri v O'Driscoll, the plaintiff sought a stay of orders made by the Family Court, which required the sale of the family home and the distribution of the proceeds between the parties. Additionally, the plaintiff was ordered to make a payment to the estate of his father-in-law. The application for a stay was heard by the Supreme Court of Queensland. The primary legal issues before the court were whether the success on appeal would render the orders nugatory, whether there were arguable grounds of appeal, and whether there were special circumstances justifying the stay.

The court considered the criteria outlined in Supreme Court Rules O64.25, focusing on the arguability of the appeal and the potential consequences of not granting a stay. The plaintiff argued that there were arguable grounds for appeal, particularly regarding the valuation of the property and the division of proceeds. The court accepted that the issues raised had sufficient merit to be considered arguable. Furthermore, the court noted that if the appeal were successful, the orders would indeed be rendered nugatory, fulfilling another criterion for a stay. Special circumstances were also considered, including the financial and emotional burden on the plaintiff if the orders were enforced pending the appeal.

Consequently, the Supreme Court granted the application for a stay. The court found that there were arguable grounds for appeal and that the orders, if enforced, would cause undue hardship. Special circumstances were also present, warranting the stay to prevent potential injustice. The court's decision ensured that the plaintiff could challenge the Family Court orders without immediate financial and emotional strain. The court ordered that the enforcement of the Family Court's orders be stayed pending the outcome of the appeal.

Orders