Evans v Evans [2011] NSWCA 92

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Evans v Evans [2011] NSWCA 92 Hearing dates: 1 March 2011 Decision date: 14 April 2011 Before: Giles JA at 1, Campbell JA at 2, Sackville AJA at 151 Decision: 1. Appeal allowed. 2. Set aside the judgment on the claim and cross-claim in the court below, and in lieu thereof order: (a) the plaintiffs' claim to any relief relating to the property at Walmer Street, Ramsgate be dismissed; (b) the plaintiffs pay the costs of the defendant of the proceedings insofar as those costs relate to the plaintiffs' claim to entitlement concerning the property at Walmer Street, Ramsgate. 3. Remit the matter to the Equity Division of the Supreme Court for a new trial concerning the claim of the Appellants to the property at Colson Crescent, Monterey. 4. Respondent to pay costs of the Appellants of the appeal. 5. Reserve to any judge who conducts the new trial concerning the Appellants' claim to the property at Colson Crescent Monterey, the question of the appropriate costs order to make concerning the first trial insofar as it related to the plaintiffs' claim to the property at Colson Crescent, Monterey. 6. Respondent to be granted an indemnity certificate under the Suitors Fund Act 1951 in respect of this appeal. 7. Order that the proceedings concerning the claim of the Appellants to relief in relation to the property at Colson Crescent Monterey be referred for mediation to the Registrar of the Equity Division or some other person nominated by her, PROVIDED THAT if the Appellants and the Respondent notify the Associate to Campbell JA and the Registrar in Equity in writing within 21 days of the date of making these orders that they consent to a mediation of the dispute being held before some other person, the mediation shall be held before that other person. 8. Stay the operation of order 3 until the conclusion of that mediation. 9. Grant liberty to apply to Campbell JA on three days notice concerning the operation of these orders, insofar only as they relate to mediation. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: ESTOPPEL - equitable estoppel - proprietary estoppel - requirement that plaintiffs' assumption be reasonable - no requirement that representations be sufficiently certain to amount to valid contract - requirement to demonstrate detriment - expectation arising from conduct over a period of time - whether it would be contrary to good conscience to disappoint - APPEAL AND NEW TRIAL - new trial - failure to make specific findings of fact to resolve conflicts of evidence - APPEAL AND NEW TRIAL - Court of Appeal - circumstances in which appellate court will make findings of fact where conflicts of evidence unresolved - not where questions of credibility - APPEAL AND NEW TRIAL - practice and procedure - costs - certificate under Suitors' Fund - PRACTICE AND PROCEDURE - mediation - power to order where appropriate Legislation Cited: Evidence Act 1995 Civil Procedure Act 2005 Suitors Fund Act 1951 Cases Cited: Australian Crime Commission v Gray [2003] NSWCA 318 Benmax v Austin Motor Co Ltd [1955] AC 370 Castle Constructions Pty Ltd v North Sydney Council [2007] NSWCA 164 Costa v The Public Trustee of NSW [2008] NSWCA 223 Customs and Excise Commissioners v A [2003] EWCA Civ 1039; [2003] 2 All ER 736 Deltaforce v Simpson-Cook [2010] NSWCA 84 Digi-Tech (Australia) Ltd v Brand [2004] NSWCA 58 Evans v Evans [2010] NSWSC 170 Flinn v Flinn [1999] 3 VR 712 Forbes v Selleys Pty Limited [2004] NSWCA 149 Galaxidis v Galaxidis [2004] NSWCA 111 Giumelli v Giumelli (1999) 196 CLR 101 Grant v Edwards (1986) Ch 638 Green v Green (1989) 17 NSWLR 343 Hall v van der Poel [2009] NSWCA 436 Jennings v Ric [2002] EWCA Civ 159 Rebenta Pty Ltd v Wise [2009] NSWCA 212 Ryan v Nominal Defendant [2005] NSWCA 59; 62 NSWLR 192 Sullivan v Sullivan [2006] NSWCA 312 Thorner v Major [2009] 1 WLR 776 Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2009] NSWCA 178 Walton v Walton (Court of Appeal of England and Wales, 14 April 1994, unreported) Texts Cited: J D Heydon & M J Leeming, Jacobs Laws of Trust in Australia, (2006) 7th Ed J D Heydon, Cross on Evidence (2010), 8th Aust Ed Category: Principal judgment Parties: Sophie Anastasia Evans (First Appellant) Peter Evans (Second Appellant) Robert Charles Evans (Respondent) Representation: Counsel: Mr J Stoljar SC, Ms J K Taylor (Appellants) Mr W G Muddle SC (Respondent) Solicitors: Michael Rogers & Co (Appellants) Boyd House & Partners (Respondent) File Number(s): 2007/256721 Decision under appeal Citation: Evans v Evans [2010] NSWSC 170 Date of Decision: 2010-02-11 00:00:00 Before: Brereton J File Number(s): 2007/256721