Van Dyke v Sidhu [2011] NSWCA 187

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Van Dyke v Sidhu [2011] NSWCA 187 Hearing dates: 1 July 2011 Decision date: 01 July 2011 Before: Bathurst CJ at [20], [24], [26]; Hodgson JA at [21], [25]; Young JA at [1], [22], [23] Decision: (1) Leave to appeal be granted. (2) Draft Notice of Appeal behind Tab 4 of the White Book should be treated as the Notice of Appeal. (3) Allow the appeal. (4) Respondent to pay costs of appeal. (5) Remit the case for trial in the Equity Division by a judge other than Gzell J. (6) Order that the respondent if eligible have a certificate under the Suitors Fund Act 1951 (7) That the orders made by Justice Gzell be set aside. (8) Costs in the first trial will be the subject of the order of the judge who conducts the second trial. [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: APPEAL- application for leave to appeal against the striking out of applicant's statement of claim- no evidence read to Court at first instance before claim for promissory estoppel or unconscionable conduct struck out- whether appropriate- it is not necessarily a complete bar to a claim to property that there is a law preventing transfer of the interest or another party has an interest- Court can give equitable compensation- primary judge should have considered the material- leave granted- appeal allowed- matter remitted to the Equity Division. Cases Cited: Gillett v Holt [2000] EWCA 45; [2001] Ch 210 Jennings v Rice [2002] EWCA Civ 159; [2003] 1 P & CR 100 Morris v Morris [1982] 1 NSWLR 61 Nichols v Nichols (1986) 4 BPR 9240 Public Trustee v Kukula (1990) 14 Fam LR 97 Category: Principal judgment Parties: Lauren Marie Van Dyke (Appellant) Prithvi Pal Singh Sidhu (Respondent) Representation: D Ash (Appellant) C R C Newlinds SC/J Giles (Respondent) Self represented (Appellant) Henry Davis York (Respondent) File Number(s): CA 2009/289460 Decision under appeal Citation: Lauren Marie Van Dyke v Prithvi Pal Singh Sidhu [2011] NSWSC 167 Date of Decision: 2011-03-07 00:00:00 Before: Gzell J File Number(s): SC 2009/289460