Sion v NSW Trustee & Guardian

Court of Appeal

New South Wales

Case Title:

Sion v NSW Trustee & Guardian

Medium Neutral Citation:

[2013] NSWCA 337

Hearing Date(s):

15 August 2013

Decision Date:

15 October 2013

Before:

Basten JA [1];
Barrett JA [2];
Emmett JA [3]

Decision:

(1) Dismiss the appeal.

(2) Order the appellants to pay the respondent's costs in this Court.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

CONTRACT - alleged statement by deceased married couple that they would leave their estates to appellants in exchange for care of them and their affairs - whether deceased wife had intention to be bound given alleged promisees were family members - certainty of contract

ESTOPPEL - whether alleged representation made - whether reliance - whether detriment

Legislation Cited:

Conveyancing Act 1919, ss 23C, 54A
Limitation Act 1969, s 14

Cases Cited:

Bovaird v Frost [2009] NSWSC 337
Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8; (2002) 209 CLR 95
Gould v Gould [1970] 1 QB 275

Category:

Principal judgment

Parties:

Ezekiel Haiem Sion (First Appellant)
Louisa Joseph (Second Appellant)
Hilda Mordecai (Third Appellant)
NSW Trustee & Guardian as administrator of the Will of Meda Chamita (Respondent)

Representation

- Counsel:

Counsel:

MS Wilmott SC with MM Pringle (Appellants)
LJ Ellison SC with HP Bennett (Respondent)

- Solicitors:

Solicitors:

DG Thomas (Appellants)
Clinch Long Letherbarrow (Respondent)

File Number(s):

CA 2012/278715

Decision Under Appeal

- Court / Tribunal:

Supreme Court

- Before:

Bergin CJ in Eq

- Date of Decision: 

30 August 2012

- Citation:

[2012] NSWSC 949

- Court File Number(s):

2010/247928

JUDGMENT

1. BASTEN JA: This appeal should be dismissed with costs for the reasons given by Emmett JA.

2. BARRETT JA: I agree with Emmett JA.

3. EMMETT JA: This appeal is concerned with claims made by the appellants that their aunt, Mrs Meda Chamita, and her husband, Mr Abraham Chamita, agreed that, in consideration of the appellants taking care of them and of their affairs, Mr and Mrs Chamita would leave their respective estates to the appellants. The appellants also claimed that Mrs Chamita represented to them that, if they cared for and looked after her and her husband, and their affairs, Mrs Chamita would leave her estate to them.

4. Mr Chamita died in 2005 and Mrs Chamita died in 2009. Mrs Chamita did not leave any part of her estate to the appellants. The respondent, the NSW Trustee & Guardian (the NSW Trustee), obtained a grant of letters of administration in respect of Mrs Chamita's estate. The appellants commenced proceedings in the Equity Division against the NSW Trustee alleging breach of the alleged agreement and the…