Ward v Loumbos - [2017] NSWCA 35

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Ward v Loumbos [2017] NSWCA 35
Hearing dates: 22 November 2016
Decision date: 09 March 2017
Before: Meagher JA at [1]
Sackville AJA at [2]
Barrett AJA at [100]
Decision:
1. Appeal allowed.
2. Set aside Orders 1-5 and Order 9 made by Lindsay J on 4 July 2016.
3. Order a new trial of the issues in the proceedings relating to the Deed Poll-Gift dated 14 July 2011 and the property shown in Folio Identifier 1/SP 72830 (Lilyfield Property).
4. Order that the costs of the proceedings before Lindsay J be determined on the retrial having regard to the outcome of the retrial.
5. Order the respondent (Mr Loumbos) to pay the costs of the appellant (Ms Ward) of the appeal.
6. The respondent have a Certificate under the Suitors’ Fund Act 1951 (NSW).

Catchwords: DEEDS – Deed poll evidencing immediate gift – whether deed poll executed in escrow – whether gift subject to a condition that marriage take place – whether primary judge correct to find that the donor did not intend an immediate gift
Legislation Cited:
Suitors’ Fund Act 1951 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Baira v RHG Mortgage Corporation Ltd [2012] NSWCA 387; 297 ALR 416
Browne v Dunn (1893) 6 R 67
Butt v Mrowka [2010] NSWCA 108; 55 MVR 380
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) [1999] HCA 3; 73 ALJR 306
Category: Principal judgment
Parties: Deborah Ward (Appellant)
Valentine Loumbos (Respondent)
Representation:
Counsel:
Mr M Ashhurst SC / Mr L Corbett (Appellant)
Mr H Insall SC / Mr N Smith (Respondent)
Solicitors:
Marsdens Law Group (Mr Johnson) (Appellant)
Adams & Partners (Mr Adams) (Respondent)

File Number(s): 2016/207199
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity Division

Citation:

[2016] NSWSC 885

Date of Decision:

28 June 2016

Before:

Lindsay J

File Number(s):

2013/363949

Judgment

MEAGHER JA: I agree, for the reasons given by Sackville AJA, that this appeal should be allowed and the orders proposed by his Honour made.
SACKVILLE AJA: The question on this appeal is whether a Judge of the Equity Division (Lindsay J) erred in finding that a gift by the respondent (Mr Loumbos) to the appellant (Ms Ward) of $1.3 million, plus certain expenses, in connection with the purchase of a residential property, was conditional on a marriage taking place between the parties. Since the marriage did not take place, the primary Judge made an order (among others) setting aside a document styled “Deed Poll-Gift” (Deed Poll) executed by Mr Loumbos evidencing the gift. His Honour also declared that Ms Ward held the residential property, which had been transferred to her name, on trust for Mr Loumbos. [1]
1. The primary Judge…

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 Ward v Loumbos

Details

AGLC: Ward v Loumbos [2017] NSWCA 35
Case: [2017] NSWCA 35
Decision Date: 09 March 2017

CaseChat Overview and Summary

In the matter of *Ward v Loumbos*, the Court of Appeal of New South Wales considered a dispute concerning a deed poll that purportedly evidenced an immediate gift. The appellant, Ms Ward, sought to overturn a primary judge's finding that the donor had not intended an immediate gift.

The central legal issues before the Court of Appeal were whether the deed poll had been executed in escrow, whether the gift was subject to a condition precedent that a marriage take place, and consequently, whether the primary judge had erred in concluding that the donor did not intend an immediate gift.

The Court of Appeal found that the primary judge had made an error in his findings regarding the donor's intention. The Court reasoned that the deed poll, on its face, indicated an immediate gift and that the evidence did not sufficiently support the conclusion that it was intended to be held in escrow or subject to a condition precedent of marriage. Accordingly, the appeal was allowed, the primary judge's orders were set aside, and a new trial was ordered concerning the deed poll and the Lilyfield Property. The costs of the proceedings before the primary judge were to be determined at the new trial, and the respondent was ordered to pay the appellant's costs of the appeal.

Orders

Orders of the court

1. Appeal allowed.

2. Set aside Orders 1-5 and Order 9 made by Lindsay J on 4 July 2016.

3. Order a new trial of the issues in the proceedings relating to the Deed Poll-Gift dated 14 July 2011 and the property shown in Folio Identifier 1/SP 72830 (Lilyfield Property).

4. Order that the costs of the proceedings before Lindsay J be determined on the retrial having regard to the outcome of the retrial.

5. Order the respondent (Mr Loumbos) to pay the costs of the appellant (Ms Ward) of the appeal.

6. The respondent have a Certificate under the Suitors’ Fund Act 1951 (NSW).

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Ward v Loumbos [2017] NSWCA 35
Hearing dates:	22 November 2016
Decision date:	09 March 2017
Before:	Meagher JA at [1] Sackville AJA at [2] Barrett AJA at [100]
Decision:	1. Appeal allowed. 2. Set aside Orders 1-5 and Order 9 made by Lindsay J on 4 July 2016. 3. Order a new trial of the issues in the proceedings relating to the Deed Poll-Gift dated 14 July 2011 and the property shown in Folio Identifier 1/SP 72830 (Lilyfield Property). 4. Order that the costs of the proceedings before Lindsay J be determined on the retrial having regard to the outcome of the retrial. 5. Order the respondent (Mr Loumbos) to pay the costs of the appellant (Ms Ward) of the appeal. 6. The respondent have a Certificate under the Suitors’ Fund Act 1951 (NSW).
Catchwords:	DEEDS – Deed poll evidencing immediate gift – whether deed poll executed in escrow – whether gift subject to a condition that marriage take place – whether primary judge correct to find that the donor did not intend an immediate gift
Legislation Cited:	Suitors’ Fund Act 1951 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Baira v RHG Mortgage Corporation Ltd [2012] NSWCA 387; 297 ALR 416 Browne v Dunn (1893) 6 R 67 Butt v Mrowka [2010] NSWCA 108; 55 MVR 380 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) [1999] HCA 3; 73 ALJR 306
Category:	Principal judgment
Parties:	Deborah Ward (Appellant) Valentine Loumbos (Respondent)
Representation:	Counsel: Mr M Ashhurst SC / Mr L Corbett (Appellant) Mr H Insall SC / Mr N Smith (Respondent) Solicitors: Marsdens Law Group (Mr Johnson) (Appellant) Adams & Partners (Mr Adams) (Respondent)
File Number(s):	2016/207199
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity Division Citation: [2016] NSWSC 885 Date of Decision: 28 June 2016 Before: Lindsay J File Number(s): 2013/363949