Poche v Ellingworth [2023] NSWSC 889

Supreme Court New South Wales

Medium Neutral Citation: Poche v Ellingworth [2023] NSWSC 889 Hearing dates: 27 July 2023 Date of orders: 27 July 2023 Decision date: 27 July 2023 Jurisdiction: Common Law Before: Campbell J Decision: The defendant/cross-claimant is granted leave to file and serve a further amended statement of cross-claim in accordance with these reasons, the plaintiff/cross-defendant's notice of motion seeking summary dismissal is dismissed, the plaintiff/cross-defendant is to pay the defendant/cross-claimant's costs of the motions of 1 June 2023 and 19 June 2023 on the ordinary basis and case management orders made with a view to the matter taking a hearing date at the next directions before the Court Catchwords: CIVIL PROCEDURE — cross-claimant's application to amend initiating process — cross-defendant's application for summary judgment — sale of property between friends — agreement for vendor to reside at the property post sale — dispute as to other conditions relating to the transaction — matter was dormant until brought back by the Court's motion — earlier application for summary dismissal in relation to the cross-claim had been dismissed — whether "otherwise" costs order should be made in relation to plaintiff's successful summary judgment earlier obtained for possession proceedings CONTRACTS — contract for the sale of land — NCAT proceedings held there was a collateral contract — issue as to terms of the collateral contract — issue as to whether the contract for sale of land is consistent with the alleged terms of the collateral contract — promissory estoppel — whether promissory estoppel can be used as a positive cause of action Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56-58 Residential Tenancies Act 2010 (NSW), s 8 Uniform Civil Procedure Rules 2005 (NSW), rr 13.4, 14.28, 42.7 Cases Cited: Agar v Hyde (2000) 201 CLR Ashton v Pratt (2015) 88 NSWLR 281; and [2015] NSWCA 12 Barnes v Addy (1874) 9 LR CH APP 44 Commonwealth of Australia v Verwayen (1990) 170 CLR 394 DHJPM Pty Limited v Blackthorn Resources Limited (2011) NSWLR 728; [2011] NSWCA 348 Giumelli v Giumelli (1999) 196 CLR 100 and [1999] HCA 10 Hoyts Pty Limited v Spencer (1919) 27 CLR 133 Poche v Ellingworth [2022] NSWSC 700 O'Brien v Bank of Western Australia Ltd [2013] NSWCA 71; (2016) 16 BPR 31,705 Riches v Hogben [1985] 2 Qld R 292 Saleh v Romanous (2010) 79 NSWLR 453; [2010] NSWCA 274 Waltons Stores (Interstate) Limited v Maher (1988) 164 CLR 387 Wickstead v Browne (1992) 30 NSWLR 1 Category: Procedural rulings Parties: Justin Wade Poche (Plaintiff/Cross-Defendant) Stephen William Ellingworth (Defendant/Cross-Clamant) Representation: Counsel: R Turnbull (Plaintiff/Cross-Defendant) P Boncardo (Defendant/Cross-Claimant)