Sayers v Sayers

[2018] NSWCA 301

Court of Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	Sayers v Sayers [2018] NSWCA 301
Hearing dates:	25 October 2018
Date of orders:	10 December 2018
Decision date:	10 December 2018
Before:	Macfarlan JA at [1]; Emmett AJA at [2]; Simpson AJA at [96]
Decision:	Appeal dismissed. The appellants pay the respondent’s costs of the appeal, including costs of the notice of motion of 22 October 2018.
Catchwords:	EQUITY – respondent is Toni, the wife of the first appellant’s brother – first appellant and his deceased brother held equal shares in a property as tenants in common – on brother’s death, title in the property was transmitted to the respondent – first appellant and respondent could not agree on sale of the property and first appellant brought proceedings under the Conveyancing Act 1919 (NSW), s 66G for the appointment of trustees for sale – trustees were appointed and property was sold at public auction to first appellant and his wife, the second appellant – dispute arose regarding entitlement to the proceeds of sale and the payment of mortgage and sale expenses – respondent claimed that sum in discharge of mortgage was impermissibly deducted from her sale proceeds – first appellant then brought claim relying on contract and promissory estoppel alleging that his deceased brother had promised that the property would pass to the first appellant’s sons, the third and fourth appellants, on his death – primary judge found that respondent’s claim was made out – primary judge dismissed the first appellant’s contract and estoppel claim – whether primary judge erred in certain factual findings
Legislation Cited:	Conveyancing Act 1919 (NSW) Real Property Act 1900 (NSW) Succession Act 2006 (NSW)
Cases Cited:	Ashton v Pratt [2015] NSWCA 12
Category:	Principal judgment
Parties:	Keith James Sayers (First Appellant) Inesita Sayers (Second Appellant) George Sayers (Third Appellant) Neil Sayers (Fourth Appellant) Toni Sayers (Respondent)
Representation:	Counsel: G W McGrath with C P Locke (Appellants) D Robertson (Respondent)   Solicitors: Oliveri Lawyers (Appellants) Baker Deane & Nutt Lawyers (Respondent)
File Number(s):	2018/190838
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity Citation: [2018] NSWSC 519 Date of Decision: 25 May 2018 Before: Slattery J File Number(s): 2015/209931

HEADNOTE

[This headnote is not to be read as part of the judgment]

The principal question in this appeal is whether the third and fourth appellants, George Sayers and Neil Sayers (together, the Sons), who are sons of the first appellant, Keith James Sayers (Cec), have any interest in the estate of the late James Keith Sayers (Bill) or the moiety in a farming property situated at Dryaaba, New South Wales (the Property) held by Bill at the date of his death. Cec was the holder of the other moiety. Cec and Bill were brothers

On 16 June 2008, Bill died intestate without issue. On 8 December 2008, letters of administration in respect of his estate were granted to the respondent, Toni…