Recent Cases

Proietti v Proietti [2022] NSWCA 234 (17 November 2022) (Mitchelmore JA at [1]; Basten AJA at [120]; Griffiths AJA at [121].)


Catchwords:


APPEALS – procedural fairness – property – proceedings commenced by summons for the appointment of trustees under s 66G of the Conveyancing Act 1919 (NSW) – where self-represented defendant consented to directions in Online Court, and made no applications prior to hearing – where large parts of defendant’s affidavit struck out – whether lack of pleadings or mediation constituted denial of procedural fairness – whether “further hearing” should have been granted – call for “substantive guidance” from Court – no denial of procedural fairness

EVIDENCE – affidavit evidence – proceedings for the appointment of trustees under s 66G of the Conveyancing Act 1919 (NSW) – where large parts of defendant’s affidavit struck out, including based on speculation as to deceased’s state of mind about change to will – whether statement made by deceased’s former solicitor, that he did not change will, relied upon to prove that fact – no applicable exception to hearsay rule – evidence properly rejected or treated as submissions

APPEALS – bias rule – actual or apprehended – proceedings for the appointment of trustees under s 66G of the Conveyancing Act 1919 (NSW) – where primary judge described case as “unremarkable” but for defences raised – where defendant alleged actual and apprehended bias based, principally, on findings against him “on nearly every single issue” – Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 42; [2011] HCA 48 – no actual or apprehended bias demonstrated

LAND LAW – co-ownership – statutory trust for partition – appointment of trustees – where defendant resisted orders for the sale of real property under s 66G of the Conveyancing Act 1919 (NSW) based on promissory estoppel and contract – where primary judge made finding of fact, based on credibility, that there was no agreement between parties not to sell before 2023 – where defendant relied on absence of evidence in text messages with plaintiff concerning pre-2023 sale – no sound foundation for challenge to finding on appeal

LAND LAW – co-ownership – statutory trust for partition – appointment of trustees – where defendant resisted orders for the sale of real property under s 66G of the Conveyancing Act 1919 (NSW) based on proprietary estoppel – where defendant alleged plaintiff owed duty to disclose change to will, removing clause allowing plaintiff continued residency for four years after deceased’s death – where defendant already knew about change, but had subsequent “realisation” that change occurred due to improper pressure applied by plaintiff – “realisation” amounted to no more than speculation

APPEALS – from finding of fact – admission of further evidence – where foreshadowed evidence would not assist appellant given assumption made by primary judge that the fact the subject of the further evidence was proved