Whall v Stamp

Case [2019] NSWCA 163


Court of Appeal


Supreme Court


New South Wales

  • Summary available
Medium Neutral Citation: Whall v Stamp [2019] NSWCA 163
Hearing dates: 29 May 2019
Date of orders: 08 July 2019
Decision date: 08 July 2019
Before: Basten JA at [1]; Leeming JA at [18]; Payne JA at [26]
Decision:

(1)   Leave to appeal granted.

 

(2)   Grant the appellant leave (to the extent necessary) to rely on further evidence to establish that he lost the possibility of a different outcome, but otherwise dismiss the appellant’s motion dated 22 May 2019.

 

(3)   Dismiss the respondent’s motion to call further evidence dated 1 May 2019

 

(4)   Direct that the draft Amended Notice of Appeal in the White Folder stand as the Amended Notice of Appeal.

 

(5)   Appeal allowed.

 

(6)   Set aside orders 1 and 2 made by the primary judge dated 23 November 2018.

 

(7)   Remit the matter to the Equity Division limited to determination of the following matters:
(a)   the appellant’s claim for the payment of damages in lieu of specific performance of any agreement entered into by the parties with respect to an interest in the property other than the leasehold;
(b)   the appellant’s claim for equitable compensation with respect to such an interest; and
(c)   the appellant’s claim for payment for services performed for the respondent which were unremunerated.

 (8)   Respondent to pay the appellant’s costs of the appeal.
Catchwords:

CIVIL PROCEDURE – motion to remove a caveat – urgent fixture of motion – caveat based on claim to life interest – separate question ordered as to existence of life interest – answer to question finally determined substantive issue – whether order for separate question appropriate given urgency of motion

 

CIVIL PROCEDURE – appeal – procedural unfairness – determination of motion to remove caveat did not require final determination of existence of life interest – whether appellant denied opportunity to prove existence of agreement to confer life interest

EVIDENCE – further evidence on appeal – need to show possibility of different outcome – application of Supreme Court Act 1970 (NSW), s 75A to evidence of procedural unfairness
Legislation Cited: Property (Relationships) Act 1984 (NSW), s 20
Real Property Act 1900 (NSW), ss 74MA, 75K
Residential Tenancies Act 2010 (NSW), ss 13, 85
Supreme Court Act 1970 (NSW), ss 75A, 101, 103
Uniform Civil Procedure Rules 2005 (NSW), rr 28.2, 51.51, 51.53
Cases Cited: Akins v National Australia Bank (1994) 34 NSWLR 155
Blazevski v Judges of the District Court of NSW (1992) 29 ALD 197
Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 92 ALJR 780
House v The King (1936) 55 CLR 499; [1936] HCA 50
Lawrence v Gunner (No 3) [2016] NSWCA 18
Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326; [2015] HCA 40
Newton v Ellis [2012] NSWCA 106
Nobarani v Mariconte [2018] HCA 36; 92 ALJR 806
Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54
Tjiong v Tjiong [2012]…

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AGLC
Whall v Stamp [2019] NSWCA 163
Case
[2019] NSWCA 163
Decision Date

CaseChat Overview and Summary

The appeal concerned a motion to remove a caveat lodged by the appellant, Mr. Whall, against a property owned by the respondent, Ms. Stamp. The caveat was based on Mr. Whall's claim to a life interest in the property. The primary judge had ordered that a separate question be determined as to the existence of a life interest, which ultimately resolved the substantive issue. Mr. Whall appealed this decision, arguing that the determination of the motion to remove the caveat did not necessitate a final determination of the existence of the life interest and that he was denied an opportunity to prove an agreement to confer such an interest.

The Court of Appeal was required to determine whether the primary judge erred in ordering the determination of a separate question regarding the existence of a life interest, and whether this procedural approach resulted in unfairness to the appellant. The court also considered whether to grant leave to rely on further evidence on appeal, specifically in relation to the alleged procedural unfairness and the possibility of a different outcome.

The Court of Appeal found that the primary judge's approach of determining the existence of the life interest as a separate question was inappropriate, as it effectively determined the substantive issue without allowing the appellant a full opportunity to present his case regarding the alleged agreement for a life interest. The court held that the determination of the motion to remove the caveat should not have been treated as a final determination of the existence of the life interest. Consequently, the appeal was allowed, and the orders of the primary judge were set aside. The matter was remitted to the Equity Division for the determination of the appellant's claims for damages in lieu of specific performance, equitable compensation, and payment for unremunerated services.

Orders

Orders of the court

(1) Leave to appeal granted.

(2) Grant the appellant leave (to the extent necessary) to rely on further evidence to establish that he lost the possibility of a different outcome, but otherwise dismiss the appellant’s motion dated 22 May 2019.

(3) Dismiss the respondent’s motion to call further evidence dated 1 May 2019

(4) Direct that the draft Amended Notice of Appeal in the White Folder stand as the Amended Notice of Appeal.

(5) Appeal allowed.

(6) Set aside orders 1 and 2 made by the primary judge dated 23 November 2018.

(7) Remit the matter to the Equity Division limited to determination of the following matters:

(a) the appellant’s claim for the payment of damages in lieu of specific performance of any agreement entered into by the parties with respect to an interest in the property other than the leasehold;

(b) the appellant’s claim for equitable compensation with respect to such an interest; and

(c) the appellant’s claim for payment for services performed for the respondent which were unremunerated.

(8) Respondent to pay the appellant’s costs of the appeal.

Background

Background to the litigation

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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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