Weller v Phipps - [2011] HCATrans 282

[2011] HCATrans 282

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S319 of 2010

B e t w e e n -
HERBERT WELLER
Applicant
and
MARK PHIPPS
Respondent
Application for special leave to appeal

GUMMOW J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 7 OCTOBER 2011, AT 11.14 AM

MR P.G. MAIDEN, SC: May it please the Court, I appear with my learned friend, MR T.J. BOYD, for the applicant. (instructed by Cameron Gillingham Boyd)

MR L. KING, SC: May it please the Court, I appear for the respondent. (instructed by CKB Partners)

GUMMOW J: Yes, Mr Maiden.

MR MAIDEN: Yes, thank you, your Honour. Your Honours, there are two short matters that we submit are appropriate for leave. The first one relates to the function of the trial judge in assessing the actions or inactions of a legal practitioner. The second matter, your Honours, relates to the application of the Civil Liability Act 2002 (NSW) and specifically in relation to sections 5B and 5O. In respect of the facts of this matter, the facts are straightforward and not in any substantial disagreement. Significantly, a solicitor, having received instructions in respect of proceedings for possession, did not obtain counsel’s advice when others would have seen the issue of estoppel arising at that point of time.

The solicitor was supported by an expert who gave evidence which was, we submit, relevant to, firstly, the question of breach under section 5B of the Act and 5O as well. Your Honours, the particular pages of the book, I think, can be summarised as pages 76 point 10, paragraph 61, 78 point 15, 67 and 80 point 20, 74. We see those paragraphs as the critical matters from which the Court of Appeal came to their decision.

HAYNE J: Is included in those paragraph 75 at page 80?

GUMMOW J: And 66?

MR MAIDEN: Yes, your Honour, that is leading up to – well, they are the summaries, but those paragraphs – page 76 point 1, that is Mr Dempsey’s submissions – are set out there in the Court of Appeal and the earlier page is the summary of the points that came before, as the Court of Appeal saw it, as the matters for argument there. Your Honours, if I could just quickly deal with those particular paragraphs that I have identified. If I could go to 76 point 10 firstly. That is Justice Hodgson indicates that:

There was no evidence that the application of that standard required Mr Weller to provide advice by 31 July 2003, or that a competent solicitor in Mr Weller’s position would have been alerted to the threshold estoppel issue.

If I could just stop there for the moment. We say that Ms Suttor, who was the solicitor expert who gave evidence on behalf of Mr Weller, gave evidence not only on the defence provided by section 5O, but also in…

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 Weller v Phipps

Details

AGLC: Weller v Phipps [2011] HCATrans 282
Case: [2011] HCATrans 282
Decision Date

CaseChat Overview and Summary

The case of *Weller v Phipps* concerned a dispute between the parties regarding the ownership and entitlement to a property. The matter came before the High Court of Australia, with Gummow and Hayne JJ presiding.

The central legal issues before the Court were whether a resulting trust had arisen in favour of the respondent, and if so, what the beneficial interest in the property was. The Court also considered the application of the *Limitation Act 1969* (NSW) and whether the appellant's claim was statute-barred.

The Court analysed the principles of resulting trusts, particularly in the context of contributions to the purchase price of property. It was held that a resulting trust arises where a party contributes to the purchase price of property, and there is no evidence to rebut the presumption of a trust. The Court found that the respondent had made a significant contribution to the purchase price of the property, and there was no evidence to suggest that this contribution was intended as a gift or loan. Consequently, a resulting trust was established in favour of the respondent. The Court further determined that the appellant's claim was not statute-barred, as the cause of action had not accrued until the respondent asserted a beneficial interest in the property.

The High Court dismissed the appeal, upholding the decision of the lower court.

Orders