Steiner v Strang

[2015] NSWCA 203

Court of Appeal
Supreme Court

New South Wales

Case Name:	Steiner v Strang
Medium Neutral Citation:	[2015] NSWCA 203
Hearing Date(s):	24 June 2015
Date of Orders:	16 July 2015
Decision Date:	16 July 2015
Before:	Emmett JA at [1] Leeming JA at [63] Simpson JA at [64]
Decision:	1    Appeal allowed.   2    Orders made on 19 September 2014 be set aside.   3   Remit the matters raised in the amended cross-summons dated 6 March 2014 to the Equity Division for retrial.   4   Respondents pay the appellant’s costs of the appeal.   5   Costs of the first trial be determined by the judge hearing the retrial.
Catchwords:	CONTRACT – whether a sum of money advanced to the appellant was a gift or a loan (now owed to an estate) – construction of an “acknowledgement”, signed after the advance of funds   EVIDENCE – rejection of evidence – whether the primary judge erred in declining to admit evidence as to the circumstances in which the acknowledgement, which had no juridical effect, was made   SUCCESSION – rule in Cherry v Boultbee (1839) 41 ER 171 – whether the acknowledgement limits the range of possible funds from which the “loan” might be repaid to the estate
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 101 Conveyancing Act 1919 (NSW), s 38 Property Law Act 1974 (Qld), s 45(2) Succession Act 2006 (NSW), Ch 3 Pt 3.2 Uniform Civil Procedure Rules 2005 (NSW), r 28.2, r 51.53
Cases Cited:	Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 Cherry v Boultbee (1839) 41 ER 171 Lym International Pty Ltd v Marcolongo [2011] NSWCA 303 Peruvian Railway Construction Co Ltd [1915] 2 Ch 144 Re Ackerman [1891] 3 Ch 212 Re Taylor [1894] 1 Ch 671
Category:	Principal judgment
Parties:	John Steiner (Appellant) Kenneth Ross Strang (First Respondent) Jason Tang (Second Respondent)
Representation:	Counsel: M Cashion SC with B Michael (Appellant) L Ellison SC (Respondents)   Solicitors: Gells Lawyers (Appellant) Glass Goodwin Solicitors (Respondents)
File Number(s):	2014/295620
Publication Restriction:	Nil
Decision under appeal:
Court or Tribunal:	Supreme Court of New South Wales
Jurisdiction:	Equity Division
Date of Decision:	12 September 2014
Before:	Sackar J
File Number(s):	2012/185566

[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.]

JUDGMENT

1. EMMETT JA: The question in this appeal is whether the appellant, Mr John Steiner, is indebted to the respondents, Mr Kenneth Strang and Mr Jason Tang (the Executors), in their capacity as executors of the estate of Mr Steiner’s mother, Mrs Dorothy Steiner, who died on 12 October 2011 (the Deceased). The Executors claim that Mr Steiner is indebted to the estate of the Deceased in the…