Woods v McKinlay - [2021] NSWSC 831

Supreme Court

New South Wales

Medium Neutral Citation: Woods v McKinlay [2021] NSWSC 831
Hearing dates: 6, 7 July 2021
Date of orders: 7 July 2021
Decision date: 07 July 2021
Jurisdiction: Equity
Before: Parker J
Decision:
See [17]

Catchwords:
CIVIL PROCEDURE – application for adjournment – lockdown orders in force in Greater Sydney – plaintiff ordered by NSW Health to self-isolate due to possible exposure to COVID-19 – whether plaintiff has a fair opportunity to participate in the hearing – application refused

Cases Cited:
Sanson v Sanson [2021] NSWSC 417

Category: Procedural rulings
Parties: Antoinette Woods (Applicant/Plaintiff)
Orlene McKinlay (First Respondent/First Defendant)
David McKinlay (Second Respondent/Second Defendant)
Representation:
Counsel:
S Stanton (Applicant/Plaintiff)
J Trebeck (First and Second Respondent/First and Second Defendant)
Solicitors:
Nexus Lawyers (Applicant/Plaintiff)
Beswick Lynch Lawyers (First and Second Respondent/First and Second Defendant)

File Number(s): 2019/263271
Publication restriction: Nil

Judgment – EX TEMPORE

Revised from transcript; issued 8 July 2021

This is an application by the plaintiff to adjourn a trial that has been fixed to commence before me next Monday, 12 July 2021. Five days have been allocated for the hearing. The hearing was fixed by the Chief Judge on 3 November 2020 and a pre-trial directions hearing was held on 9 June 2021. The application has been brought on an urgent basis.
The case arises out of a family dispute concerning the ownership of a home at Telopea in western Sydney. The plaintiff, Ms Antoinette Woods, has lived at the house since October 2001, but it is actually registered in the name of Ms Woods' sister, Ms Orlene McKinlay, and her son, Mr David McKinlay. They are the first and second defendants.
There is a dispute between the parties about the terms on which the property was acquired. According to Ms Woods, it was acquired under a resulting trust or some other trust arrangement in her favour. Although the deposit and stamp duty, together with the other acquisition costs, were paid by the defendants, according to Ms Woods she has since made all repayments of the mortgage and has paid all of the outgoings on the property.
According to the defendants, the arrangement was an informal one, under which Ms Woods made the repayments of the mortgage and the expenses, but had no tenure beyond one month's notice or, alternatively, reasonable notice. By cross-claim the defendants seek vacant possession of the property, although they acknowledge that on the sale of the property, they will be obliged to account to Ms Woods for a sum of $130,000 which she paid off the mortgage in 2002.
At the time of the pre-trial directions hearing, the parties agreed that the case should, if possible, proceed by way of face-to-face hearing and arrangements were made for this to be done. But those plans were disturbed by the lockdown which began in Greater Sydney on Friday, 25 June. Last Wednesday, 30 June, the lockdown was extended until midnight on this Friday, 9 July 2021. At the time of delivering judgment…

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 Woods v McKinlay

Details

AGLC: Woods v McKinlay [2021] NSWSC 831
Case: [2021] NSWSC 831
Decision Date: 07 July 2021

CaseChat Overview and Summary

Woods sought an adjournment of a hearing in the Federal Circuit and County Court of Australia, arguing that he was unable to participate due to a self-isolation order issued by NSW Health as a result of a possible exposure to COVID-19. McKinlay opposed the application, arguing that the plaintiff had had ample time to prepare for the hearing and that there was no justification for an adjournment. The matter came before the court for determination.

The court was required to consider whether the plaintiff had a fair opportunity to participate in the hearing given the lockdown orders in force in Greater Sydney and whether the plaintiff's self-isolation order was a sufficient reason to grant the adjournment. The court considered the plaintiff's affidavit and evidence, as well as the arguments of the defendant.

The court found that the plaintiff had had sufficient time to prepare for the hearing and that there was no justification for an adjournment. The court noted that the plaintiff's self-isolation order did not prevent him from participating in the hearing and that the plaintiff could have participated via telephone or video conference. The court found that the plaintiff's reasons for the adjournment were not sufficient and refused the application. The court found that the plaintiff had a fair opportunity to participate in the hearing and that the application was therefore refused.

The court did not make any further orders.

Orders