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:
(8) Respondent to pay the appellant’s costs of the appeal.
(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.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 unfairnessLegislation 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, 51.53Cases 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 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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