Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Sckaff v Sckaff [2024] NSWCA 207 Hearing dates: 7 June 2024 Date of orders: 19 August 2024 Decision date: 19 August 2024 Before: Leeming JA at [1];
Mitchelmore JA at [2];
Stern JA at [179]Decision: (1) Appeal allowed.
(2) Set aside orders 1 to 9 inclusive made on 15 December 2023 and in lieu thereof, order that:
1. Within 90 days, the defendants pay equitable compensation to the plaintiffs, being the sum of $250,000, with that sum to be secured by an equitable charge over the property at [No 6] (“the Property”);
2. The second further amended statement of claim is otherwise dismissed.
(3) Order pursuant to s 74MA of the Real Property Act 1900 (NSW) that the caveat having registered number … lodged by the first respondent over the Property be withdrawn or removed within 28 days of today.
(4) Direct the parties to supply agreed short minutes of order in relation to the balance of the relief sought by the appellants within 14 days of today, or, in lieu of agreement:
(a) direct each party to file and serve the orders for which they contend, including as to costs, together with submissions not exceeding 5 pages within 14 days of today, and
(b) direct each party to file and serve submissions in reply within 7 days thereafter.
Catchwords: ESTOPPEL — proprietary estoppel — standing by — where appellants registered proprietors — where appellants allowed respondents to occupy property long term for no rent — whether first appellant paid for property — whether first appellant asserted ownership of property to respondents — proprietary estoppel not made out
APPEALS — review of findings of primary fact — whether primary judge erred by failing to make findings of fact — where evidence lost to passage of time — where multiple conflicting witnesses — error in finding on basis not put to parties or supported by evidence — evidence sufficient to support finding — findings made pursuant to s 75A of the Supreme Court Act 1970 (NSW)
Legislation Cited: Civil Procedure Act 2005 (NSW), s 56
Residential Tenancies Act 1970 (NSW), s 13
Supreme Court Act 1970 (NSW), s 75A
Uniform Civil Procedure Rules 2005 (NSW), r 51.53(1)
Cases Cited: Blatch v Archer (1774) 1 Cowp 63; 98 ER 969
Clancy & Anor v Salienta Pty Ltd & Ors [2000] NSWCA 248; (2000) 11 BPR 20,425
Cook's Construction Pty Ltd v Brown & Anor [2004] NSWCA 105; (2004) 49 ACSR 62
Currie v Hamilton [1984] 1 NSWLR 687
Curtis v Curtis [2024] NSWCA 136
Delaforce v Simpson-Cook (2010) 78 NSWLR 483; [2010] NSWCA 84
Donnelly v Kempsey Local Aboriginal Land Council [2021] NSWSC 1699
Fensom & Anor v Cootamundra Racecourse Reserve Trust & Ors [2000] NSWSC 1072
Foundas v Aramztzis [2020] NSWCA 47
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- AGLC
- Sckaff v Sckaff [2024] NSWCA 207
- Case
- [2024] NSWCA 207
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the primary judge erred in their findings of fact, particularly in relation to the evidence which had been affected by the passage of time and conflicting witness accounts. A key question was whether any findings were made on a basis not put to the parties or unsupported by the evidence. The court also had to consider whether the evidence was sufficient to support the findings that were made, and whether the primary judge had properly exercised their powers under s 75A of the Supreme Court Act 1970 (NSW).
The Court of Appeal allowed the appeal, finding that proprietary estoppel was not made out. The court reasoned that the appellants had not asserted ownership of the property in a way that would give rise to an estoppel, and that the evidence did not support the respondents' claim. The court set aside the orders of the primary judge and, in lieu, ordered that the defendants pay equitable compensation to the plaintiffs in the sum of $250,000, secured by an equitable charge over the property. The court also ordered the removal of a caveat lodged by the first respondent and directed the parties to agree on short minutes of order for the remaining relief or to provide submissions.
Orders
Orders of the court
(1) Appeal allowed.
(2) Set aside orders 1 to 9 inclusive made on 15 December 2023 and in lieu thereof, order that:
1. Within 90 days, the defendants pay equitable compensation to the plaintiffs, being the sum of $250,000, with that sum to be secured by an equitable charge over the property at [No 6] (“the Property”);
2. The second further amended statement of claim is otherwise dismissed.
(3) Order pursuant to s 74MA of the Real Property Act 1900 (NSW) that the caveat having registered number … lodged by the first respondent over the Property be withdrawn or removed within 28 days of today.
(4) Direct the parties to supply agreed short minutes of order in relation to the balance of the relief sought by the appellants within 14 days of today, or, in lieu of agreement:
(a) direct each party to file and serve the orders for which they contend, including as to costs, together with submissions not exceeding 5 pages within 14 days of today, and
(b) direct each party to file and serve submissions in reply within 7 days thereafter.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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