Sayers v Sayers

The dispute in *Sayers v Sayers* concerned the entitlement to the proceeds of sale of a property held by the first appellant and his deceased brother as tenants in common. Following the brother's death, his share in the property was transmitted to the respondent, his wife. Disagreement over the sale of the property led the first appellant to initiate proceedings under section 66G of the *Conveyancing Act 1919* (NSW) for the appointment of trustees for sale. Trustees were appointed, and the property was subsequently sold at public auction to the first appellant and his wife, the second appellant. The core of the dispute revolved around the distribution of these sale proceeds, specifically whether the respondent was entitled to a greater share than awarded, and the first appellant's claim that the property was promised to his sons. The appeal was heard by Macfarlan JA, Emmett AJA, and Simpson AJA.

The legal issues before the court included whether the primary judge erred in factual findings concerning the respondent's claim regarding the deduction of mortgage discharge sums from her sale proceeds. Additionally, the court had to determine whether the primary judge erred in dismissing the first appellant's claim based on contract and promissory estoppel, which alleged a promise by his deceased brother that the property would pass to the first appellant's sons upon his death.

The court's reasoning affirmed the primary judge's findings. The primary judge had found the respondent's claim to be made out, concluding that the sum used to discharge the mortgage had been impermissibly deducted from her sale proceeds. The first appellant's claim, relying on contract and promissory estoppel, was dismissed by the primary judge, and the appellate court found no error in this determination. The court ultimately dismissed the appeal. The appellants were ordered to pay the respondent's costs of the appeal, including the costs of a specific notice of motion.