Proietti v Proietti [2022] NSWCA 234

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Proietti v Proietti [2022] NSWCA 234 Hearing dates: 14 October 2022 Date of orders: 17 November 2022 Decision date: 17 November 2022 Before: Mitchelmore JA at [1]; Basten AJA at [120]; Griffiths AJA at [121]. Decision: (1) Dismiss the Notice of Motion filed on 25 July 2022 with costs. (2) Dismiss the appeal. (3) Set aside order 10 made by the primary judge on 7 July 2022 and, in lieu thereof, order that Orders 1, 2, 4 and 8 be stayed for 28 days from the date of this judgment. (4) Order that the appellant pay the respondent's costs in this Court. 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 Legislation Cited: Civil Procedure Act 2005 (NSW), ss 26, 30, 57(1), 62(4), 66 Conveyancing Act 1919 (NSW), s 66G Evidence Act 1995 (NSW), s 55(1), ss 59, 60, 77 Uniform Civil Procedure Act 2005 (NSW), rules 6.4(1)(i), 51.51 Cases Cited: Chen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 288 FCR 218; [2022] FCAFC 41 CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76; [2019] HCA 50 Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55 DC v Secretary, Department of Family and Community Services & Ors [2017] NSWCA 225 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Hamod v New South Wales [2011] NSWCA 375 Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20 Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 42; [2011] HCA 48 Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679 Soulemezis v Dudley Holdings Pty Ltd (1987) 10 NSWLR 247 South Western Sydney Area Health Services v Edmonds [2007] NSWCA 16 Waltons Stores (Interstate) Ltd v Maher and Anor (1988) 164 CLR 387; [1988] HCA 7 Zerjavic v Chevron Australia Pty Ltd [2020] WASCA 40 Zhang v Metcalf [2020] NSWCA 228 Texts Cited: Practice Note SC Eq 1 Practice Note SC Eq 12 Practice Note SC Eq 14 Practice Note SC Gen 6 Category: Principal judgment Parties: Philip Proietti (Appellant) Peter Proietti (Respondent) Representation: Counsel: Self-represented (Appellant) A Paterson (Respondent)