MENCZER v BRUINSMA [1996] NSWCA 358

MENCZER v BRUINSMA SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MEAGHER, BEAXLEY JJA and Simos AJA 7 August 1996, 7 August 1996

[1996] NSWCA 358

INTERPRETATION OF INSTRUMENTS — Admissibility of extrinsic evidence — Deeds — Arrangements between mother and daughter — handwritten agreement created prior to entry into deed

Beazley JA This is an appeal from a judgment of Mr Justice Santow involving the construction of two deeds, the first entered into on 23 April 1980 and the second on 5 February 1993. The effect of the trial judge's judgment was that the 1980 deed remained on foot but the 1993 deed had been terminated by reason of the appellant's breach of one of its terms. His Honour's orders gave effect to those two findings.

The appellant raised twenty-eight grounds of appeal. Most of those grounds were abandoned at the commencement of the hearing, leaving only two issues for determination. First, whether the 1993 deed abrogated the 1980 deed and, secondly, whether his Honour erred in awarding the respondent indemnity costs. There is also a consequential costs order in respect of proceedings on 6 September 1995 that needs to be dealt with.

Before dealing with the two issues, it is appropriate to refer briefly to the facts. The parties are mother and daughter, the mother being the plaintiff in the proceedings below and the respondent on the appeal. As events turned out, both became widowed within two years of each other and at least from then they lived together with the appellant's four children in a property at Bondi which is owned by the appellant. Sometime in about 1979 or 1980, the mother loaned a sum of money to the daughter to allow extensions to be made to the Bondi property. There was a dispute as to the amount lent, which his Honour the trial judge found unnecessary to determine, as the parties had entered into a deed which was to reflect the arrangement which they intended to govern the making of the loan. That deed is the deed of 23 April 1980 to which I have referred.