Tadrous v Tadrous

Case [2012] NSWCA 16

Court of Appeal


Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Tadrous v Tadrous [2012] NSWCA 16
Hearing dates:24 August 2011
Decision date: 23 February 2012
Before: Young JA at [1]
Meagher JA at [2]
Handley AJA at [61]
Decision:

(1) Appeal allowed in part.

(2) Set aside Order 2 made by Pembroke J on 3 December 2010.

(3) Order that the charge secure $561,360 together with interest on that amount at the pre-judgment rates calculated in accordance with UCPR, r 6.12.8 from 1 December 2003 to 23 February 2012 and thereafter together with interest on the whole sum pursuant to s 101 of the Civil Procedure Act 2005 until discharged.

(4) If the parties are able to agree as to the amount, inclusive of pre-judgment interest, that should be ordered in accordance with Order 3, the parties should within 14 days of this judgment lodge with the Court a form setting out consent orders to be made by the Court in chambers which gives effect to that order.

(5) If the parties are unable to so agree within that period, they should lodge written submissions as to the orders that should be made, the respondent within 7 days after the time for agreement has expired and the appellant within 7 days thereafter. The Court will then determine what orders should be made on the basis of those submissions.

(6) The appellant to pay 90 percent of the respondent's costs of the appeal.

[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 Court146s 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: ESTOPPEL - equitable proprietary estoppel - monies advanced by the respondent and her husband to the appellant for development of residential property - oral assurances that following completion of development, appellant would repay money and transfer part of property at cost - whether expectation of the respondent was sufficient to give rise to an equitable estoppel
REMEDIES - equitable proprietary estoppel - whether respondent entitled to relief by way of equitable charge - interest - whether primary judge erred in awarding compound interest on monies secured by charge
Cases Cited: Cadorange Pty Ltd (In Liq) v Tanga Holdings Pty Ltd
(1990) 20 NSWLR 46
Chalmers v Pardoe [1963] 1 WLR 677
Cobbe v Yeoman's Row Management Ltd
[2008] 1 WLR 1752
Delaforce v Simpson-Cook [2010] NSWCA 84
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Gillett v Holt [2001] Ch 210
Giumelli v Giumelli [1999] HCA 10; (1999) 196 CLR 101
In re Whitehead, Whitehead v Whitehead [1948] NZLR 1066
Morris v Morris [1982] 1 NSWLR 61
Plimmer v Mayor of Wellington (1884) LR 9 App Cas 699
Ramsden v Dyson…

Continue reading Tadrous v Tadrous

Sign in free to access the full text

Details
AGLC
Tadrous v Tadrous [2012] NSWCA 16
Case
[2012] NSWCA 16
Decision Date

CaseChat Overview and Summary

The appeal concerned a dispute between a brother, the appellant, and his sister, the respondent, regarding monies advanced by the respondent and her late husband to the appellant for the development of residential property. The respondent alleged that the appellant had orally assured her that upon completion of the development, he would repay the advanced monies and transfer a portion of the property to her at cost. The case was heard in the Court of Appeal of New South Wales.

The primary legal issues before the Court of Appeal were whether the respondent's expectation of repayment and transfer of property was sufficient to give rise to an equitable proprietary estoppel, and if so, whether the respondent was entitled to relief by way of an equitable charge over the property. A further issue was whether the primary judge had erred in awarding compound interest on the monies secured by the charge.

The Court of Appeal found that the respondent's expectation was indeed sufficient to give rise to an equitable estoppel. The court reasoned that the appellant's conduct, in accepting the monies and making oral assurances, had created an expectation in the respondent that she would receive a benefit from the development. The court applied the principles of equitable proprietary estoppel, which protect parties who have acted to their detriment in reliance on such assurances. The court also addressed the issue of interest, modifying the primary judge's order regarding compound interest.

The appeal was allowed in part. The order of the primary judge regarding the charge was set aside and varied to secure a specific amount of $561,360, with interest to be calculated in accordance with the Uniform Civil Procedure Rules and the Civil Procedure Act 2005. The parties were given an opportunity to agree on the precise amount, failing which they were to provide written submissions to the Court. The appellant was ordered to pay 90 percent of the respondent's costs of the appeal.

Orders

Orders of the court

(1) Appeal allowed in part.

(2) Set aside Order 2 made by Pembroke J on 3 December 2010.

(3) Order that the charge secure $561,360 together with interest on that amount at the pre-judgment rates calculated in accordance with UCPR, r 6.12.8 from 1 December 2003 to 23 February 2012 and thereafter together with interest on the whole sum pursuant to s 101 of the Civil Procedure Act 2005 until discharged.

(4) If the parties are able to agree as to the amount, inclusive of pre-judgment interest, that should be ordered in accordance with Order 3, the parties should within 14 days of this judgment lodge with the Court a form setting out consent orders to be made by the Court in chambers which gives effect to that order.

(5) If the parties are unable to so agree within that period, they should lodge written submissions as to the orders that should be made, the respondent within 7 days after the time for agreement has expired and the appellant within 7 days thereafter. The Court will then determine what orders should be made on the basis of those submissions.

(6) The appellant to pay 90 percent of the respondent's costs of the appeal.

[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 Court146s 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.]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.