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Stone v Kramer (No 2)

Stone v Kramer (No 2)

Case [2022] NSWSC 1716 16 December 2022

Estoppel

Costs

Property Law

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Supreme Court

New South Wales

Medium Neutral Citation: Stone v Kramer (No 2) [2022] NSWSC 1716
Hearing dates: 20 October 2022
Decision date: 16 December 2022
Jurisdiction: Equity
Before: Robb J
Decision:
See [94] for proposed orders. The parties are directed to provide short minutes of order to the Associate to Robb J within 21 days.

Catchwords:
ESTOPPEL — estoppel by representation — relief — whether plaintiff entitled to orders that he be entitled to water licence and equipment collateral to management of farming property — whether to allow plaintiff to reopen his case to prove entitlement to water licence and equipment — whether plaintiff entitled to order that defendants pay costs ancillary to transfer of real property — whether defendants entitled to orders granting them licence to occupy cottage on farming property
COSTS — party/party — exceptions to general rule that costs follow the event — offers of compromise/Calderbank offers — rejection of Calderbank offer not unreasonable — no basis for indemnity costs order in plaintiff’s favour

Legislation Cited:
Water Act 1912 (NSW)
Water Management Act 2000 (NSW), ss 71M, 71N

Cases Cited:
Alexakis v Masters [2022] NSWSC 1256
Autodesk v Dyason (No 2) (1993) 176 CLR 300
Calderbank v Calderbank [1975] 3 All ER 333
Cunningham v Guardian Royal Financial Services Pty Ltd [2017] NSWSC 1057
Divine Real Estate v Agha [2022] NSWSC 543
Elders Rural Finance Ltd v Westpac Banking Corporation (1989) 6 BPR 13,439
Martin v Martin [2010] NSWSC 700
Stone v Kramer [2021] NSWSC 1456
Stuart Henry Masters v NSW Trustee & Guardian as trustee for Genniece Merlene Gorey [2018] NSWSC 1670
Urban Transport Authority of NSW v Nweiser (1991) 28 NSWLR 471

Category: Consequential orders
Parties: David Lindsay Stone (Plaintiff)
Hilary Lorraine Kramer (First Defendant)
Jaime Ferrer (Second Defendant)
Representation:
Counsel:
L Ellison SC & Dr H Bennett (Plaintiff)
C Harris SC & S Hartford-Davis (Defendants)
Solicitors:
Lane Associates (Plaintiff)
Morris Mennilli (Defendants)

File Number(s): 2017/261027

JUDGMENT

The Court published its primary judgment in these proceedings on 10 November 2021: see Stone v Kramer [2021] NSWSC 1456 ("J"). The plaintiff substantially succeeded on his claim. I considered the appropriate relief at J [338]-[343]. At J [343], I invited the parties to provide draft short minutes of order to my Associate to give effect to my reasons for judgment.
I will, as have the parties and as I did in the primary judgment, refer to the parties by their first names and otherwise use the same terms as were used in the primary judgment. As Hilary conducted the hearing for the defendant executors, I will generally refer to Hilary alone unless it is more appropriate to refer to the executors.
The Court has not yet made final orders to give effect to the primary judgment. After some communications between the parties, on 3 May 2022 David filed the notice of motion whose determination is a subject of these reasons. The Court should also address whether final orders should be made now. The parties filed…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Stone v Kramer (No 2)

Details

AGLC: Stone v Kramer (No 2) [2022] NSWSC 1716
Case: [2022] NSWSC 1716
Decision Date: 16 December 2022

CaseChat Overview and Summary

The appeal involved a dispute between the parties concerning the ownership and management of a farming property. The plaintiff sought relief in the form of a water licence, equipment, and orders for the defendants to vacate the property. The case was heard in the Supreme Court of New South Wales. The plaintiff argued that the defendants had made representations regarding the water licence and equipment, which they were estopped from denying. The plaintiff also sought orders for the defendants to pay costs associated with the transfer of the property and for the defendants to be granted a licence to occupy a cottage on the property.

The legal issues before the court were whether the plaintiff was entitled to the orders sought, including the reopening of his case to prove his entitlement to the water licence and equipment. The court also considered whether the plaintiff was entitled to an order for the defendants to pay costs ancillary to the transfer of the real property, and whether the defendants were entitled to orders granting them a licence to occupy the cottage. Additionally, the court examined the issue of costs, specifically whether the plaintiff was entitled to indemnity costs and whether the defendants were entitled to a costs order in their favour.

The court held that the plaintiff was not entitled to the orders sought, including the reopening of his case. The court found that the plaintiff had not made out a case for estoppel by representation, and that the evidence did not support the plaintiff's claim for the water licence and equipment. The court also found that the plaintiff was not entitled to an order for the defendants to pay costs ancillary to the transfer of the property. Regarding the costs, the court found that the rejection of the Calderbank offer was not unreasonable, and that there was no basis for an indemnity costs order in the plaintiff's favour.

The court made orders dismissing the plaintiff's appeal and ordering the plaintiff to pay the defendants' costs of the appeal. The court also made orders dismissing the defendants' cross-appeal and ordering the defendants to pay their own costs of the cross-appeal.

Orders