Van Dyke v Sidhu - [2011] NSWCA 187

Court of Appeal

New South Wales

Case Title: Van Dyke v Sidhu

Medium Neutral Citation: [2011] NSWCA 187

Hearing Date(s): 1 July 2011

Decision Date: 01 July 2011

Jurisdiction:

Before:
Bathurst CJ at [20], [24], [26]; Hodgson JA at [21], [25]; Young JA at [1], [22], [23]

Decision:
(1) Leave to appeal be granted.
(2) Draft Notice of Appeal behind Tab 4 of the White Book should be treated as the Notice of Appeal.
(3) Allow the appeal.
(4) Respondent to pay costs of appeal.
(5) Remit the case for trial in the Equity Division by a judge other than Gzell J.
(6) Order that the respondent if eligible have a certificate under the Suitors Fund Act 1951
(7) That the orders made by Justice Gzell be set aside.
(8) Costs in the first trial will be the subject of the order of the judge who conducts the second trial.
[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:
APPEAL- application for leave to appeal against the striking out of applicant's statement of claim- no evidence read to Court at first instance before claim for promissory estoppel or unconscionable conduct struck out- whether appropriate- it is not necessarily a complete bar to a claim to property that there is a law preventing transfer of the interest or another party has an interest- Court can give equitable compensation- primary judge should have considered the material- leave granted- appeal allowed- matter remitted to the Equity Division.

Legislation Cited:

Cases Cited:
Gillett v Holt [2000] EWCA 45; [2001] Ch 210
Jennings v Rice [2002] EWCA Civ 159; [2003] 1 P & CR 100
Morris v Morris [1982] 1 NSWLR 61
Nichols v Nichols (1986) 4 BPR 9240
Public Trustee v Kukula (1990) 14 Fam LR 97

Texts Cited:

Category: Principal judgment

Parties:
Lauren Marie Van Dyke (Appellant)
Prithvi Pal Singh Sidhu (Respondent)

Representation

- Counsel:
D Ash (Appellant)
C R C Newlinds SC/J Giles (Respondent)

- Solicitors:
Self represented (Appellant)
Henry Davis York (Respondent)

File number(s): CA 2009/289460

Decision Under Appeal

- Court / Tribunal:

- Before: Gzell J

- Date of Decision: 07 March 2011

- Citation: Lauren Marie Van Dyke v Prithvi Pal Singh Sidhu [2011] NSWSC 167

- Court File Number(s) SC 2009/289460

Publication Restriction:

Judgment

YOUNG JA: This is the concurrent hearing of an application for leave to appeal against a decision of Gzell J striking out the applicant's claim on the basis that, should the Court consider leave to appeal should be granted, it will also hear the appeal.

The basal facts are that the applicant, a female, and the respondent, a male, had a personal relationship for…

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 Van Dyke v Sidhu

Details

AGLC: Van Dyke v Sidhu [2011] NSWCA 187
Case: [2011] NSWCA 187
Decision Date: 01 July 2011

CaseChat Overview and Summary

In *Van Dyke v Sidhu*, the applicant sought leave to appeal against the striking out of their statement of claim by a judge of the Equity Division of the Supreme Court of New South Wales. The applicant's claim, which alleged promissory estoppel and unconscionable conduct, was struck out at first instance without any evidence being read to the court.

The central legal issue before the Court of Appeal was whether the primary judge had erred in striking out the statement of claim without considering the material before the court. The applicant contended that the primary judge should have allowed the matter to proceed to a full hearing, particularly given that the existence of a law preventing the transfer of property or the interest of another party does not necessarily preclude a claim for equitable compensation.

The Court of Appeal, comprising Bathurst CJ, Hodgson and Young JJA, found that the primary judge had not properly considered the material before them. They held that it is not an absolute bar to a claim that there may be legal impediments to the transfer of property or that another party holds an interest, as equitable compensation may be available. Consequently, leave to appeal was granted, the appeal was allowed, and the matter was remitted to the Equity Division for trial by a different judge. The orders of the primary judge were set aside, and the respondent was ordered to pay the costs of the appeal.

Orders

Orders of the court

(1) Leave to appeal be granted.

(2) Draft Notice of Appeal behind Tab 4 of the White Book should be treated as the Notice of Appeal.

(3) Allow the appeal.

(4) Respondent to pay costs of appeal.

(5) Remit the case for trial in the Equity Division by a judge other than Gzell J.

(6) Order that the respondent if eligible have a certificate under the Suitors Fund Act 1951

(7) That the orders made by Justice Gzell be set aside.

(8) Costs in the first trial will be the subject of the order of the judge who conducts the second trial.

[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.]

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.

Case Title:	Van Dyke v Sidhu
Medium Neutral Citation:	[2011] NSWCA 187
Hearing Date(s):	1 July 2011
Decision Date:	01 July 2011
Jurisdiction:
Before:	Bathurst CJ at [20], [24], [26]; Hodgson JA at [21], [25]; Young JA at [1], [22], [23]
Decision:	(1) Leave to appeal be granted. (2) Draft Notice of Appeal behind Tab 4 of the White Book should be treated as the Notice of Appeal. (3) Allow the appeal. (4) Respondent to pay costs of appeal. (5) Remit the case for trial in the Equity Division by a judge other than Gzell J. (6) Order that the respondent if eligible have a certificate under the Suitors Fund Act 1951 (7) That the orders made by Justice Gzell be set aside. (8) Costs in the first trial will be the subject of the order of the judge who conducts the second trial. [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:	APPEAL- application for leave to appeal against the striking out of applicant's statement of claim- no evidence read to Court at first instance before claim for promissory estoppel or unconscionable conduct struck out- whether appropriate- it is not necessarily a complete bar to a claim to property that there is a law preventing transfer of the interest or another party has an interest- Court can give equitable compensation- primary judge should have considered the material- leave granted- appeal allowed- matter remitted to the Equity Division.
Legislation Cited:
Cases Cited:	Gillett v Holt [2000] EWCA 45; [2001] Ch 210 Jennings v Rice [2002] EWCA Civ 159; [2003] 1 P & CR 100 Morris v Morris [1982] 1 NSWLR 61 Nichols v Nichols (1986) 4 BPR 9240 Public Trustee v Kukula (1990) 14 Fam LR 97
Texts Cited:
Category:	Principal judgment
Parties:	Lauren Marie Van Dyke (Appellant) Prithvi Pal Singh Sidhu (Respondent)
Representation
- Counsel:	D Ash (Appellant) C R C Newlinds SC/J Giles (Respondent)
- Solicitors:	Self represented (Appellant) Henry Davis York (Respondent)
File number(s):	CA 2009/289460
Decision Under Appeal
- Court / Tribunal:
- Before:	Gzell J
- Date of Decision:	07 March 2011
- Citation:	Lauren Marie Van Dyke v Prithvi Pal Singh Sidhu [2011] NSWSC 167
- Court File Number(s)	SC 2009/289460
Publication Restriction: