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 Judgment 1YOUNG JA: This is the concurrent hearing of an application for leave to appeal against a decision of Gzell J striking out the applicant's claim on the basis that, should the Court consider leave to appeal should be granted, it will also hear the appeal. 2The basal facts are that the applicant, a female, and the respondent, a male, had a personal relationship for many years. The respondent and his wife are the registered proprietors of two parcels of land in southern New South Wales known as Burra and Burra Estate. Both parcels have the potential for subdivision. Up until 2006 when it burnt down, at all material times the applicant lived in Oak Cottage, which was situated on Burra. 3The applicant says that she was promised by the respondent that, when Burra was subdivided, she would be given Oak Cottage and its curtilage. She was also told that Oak Cottage was her home and there was no need for her to seek any divorce settlement from her husband. 4Because of the rather bizarre way in which this case proceeded below, no evidence was ever read to the Court before the applicant's claim was struck out, but it seems common ground that there was a sexual relationship between the parties, that the applicant and her husband got divorced when that became known and that the applicant's then husband was the brother of the respondent's wife. 5The applicant said that she relied on the promises. She continued to live in Oak Cottage. She did not seek any divorce settlement from her husband, the defendant's brother-in-law, and she did considerable work on Oak Cottage. The respondent says that the applicant was only ever a tenant of Oak Cottage at a rent of usually $100 a week. The applicant agrees that she did for a period pay $100 a week, but says that this was not really rent, this was a payment so that the respondent's wife would think she was a tenant and not there because of her relationship with the respondent. What the truth is could only be resolved after a full hearing which never happened. 6The applicant's claim for equitable relief came before Gzell J on 7 March 2011. Something odd then happened. The transcript shows that, almost at the very commencement of the hearing, the primary judge said to the applicant, who was then appearing in person, "Ms Van Dyke, will you tell me how you get around the problem that there has been no subdivision of the Oaks Cottage land?" The applicant responded to that question and there was discussion. 7The judge seemed to have taken the view that the case was hopeless and that it would really be criminal to spend too much time on the matter. At page 5 of the transcript, Mr C R C Newlinds SC, who appeared for the respondent, got hold of those vibes and said, "I don't require any evidence, and if your Honour requires it, I formally move that the plaintiff's case be dismissed." 8The primary judge is then recorded as saying, "I propose in that case to...". The applicant interrupted him and asked for a chance to have her say. She asked whether she could actually make her opening address. The primary judge agreed with this. However, at the end of the address the primary judge said: "Notwithstanding that opening, Ms Van Dyke, I remain of the view that the action you have brought is fatally flawed. As I have said, I will give full reasons for that judgment but I strike out the statement of claim and enter judgment for the defendant with costs." 9The impression one gets is that the "motion" to strike out was really the judge acting sua sponte and that Mr Newlinds just came on board and made the formal application. 10His Honour's reasons show that he dismissed the claim for two principal reasons. First, that the suit was defective for want of parties as the respondent's wife, who was a joint tenant with him of Burra, was not a party to the proceedings yet an order was being sought with respect to property of which she was a part owner. Second, that the promise made by the respondent was only to be fulfilled when Burra was subdivided and that had not yet occurred. The latter point was based on a decision of this Court in Public Trustee v Kukula (1990) 14 Fam LR 97. 11At this hearing, Mr D Ash appeared on a pro bono basis for the applicant and Mr C R Ct Newlinds SC and Mr J Giles appeared for the respondent. We did not call on Mr Ash, but his written submissions put that the primary judge should not have summarily dismissed the claim. He put that the primary judge appears to have overlooked the fact that the claim to Oak Cottage upon the subdivision of Burra was only part of it and that, if one reads the statement of claim carefully, there were at least two other aspects to the claim to Oak Cottage. One was that the applicant was told that it would always be her home and, indeed, it was her home. She was not told that it would be at some time in the future, and, in actual fact, she was continuing to live there and, on her case, any money she was paying was a pretend rent, not an actual rent as a tenant. Furthermore, there was the fact that she could have obtained a divorce settlement from her husband, but she declined to do so on the basis of the promise that she would have a house in which she would live, namely, Oak Cottage. 12The respondent puts that the claim was one solely based on promissory estoppel. Mr Ash says that, "no", the applicant's claim was also based on unconscionable conduct and that if one looks at para 31 of the statement of claim one can see that that was so. I think it is more likely than not what Mr Ash says here is correct. In any event, recent decisions in England such as Gillett v Holt [2000] EWCA 45; [2001] Ch 210 and Jennings v Rice [2002] EWCA Civ 159; [2003] 1 P & CR 100 show that there is no definite boundary between unconscionable conduct and cases in promissory or proprietary estoppel. 13The plaintiff's case did have some problems. Kukula is a decision which is binding on us, as it is a decision of this Court in 1990. However, cases such as Gillett v Holt and Jennings v Rice do show the limits of Kukula and perhaps it may even one day have to be reconsidered. Again, cases like Morris v Morris [1982]1 NSWLR 61 and the decision of Needham J in the Lord Howe Island case , Nichols v Nichols (1986) 4 BPR 9240, show that it is not necessarily a complete bar to a claim that there is some law preventing transfer of an interest in the subject property or some other party holds an interest in the property which is the subject of the claim: the Court can give equitable compensation. 14Accordingly, it would seem to me that the learned judge did react too quickly to this case. He should have considered the material and it would have been possible, despite the defect which the judge thought to exist, for the plaintiff to have succeeded. Accordingly, this is a case where leave to appeal should be granted, the appeal allowed and the matter sent back to the Equity Division to be tried according to law. 15There are other peripheral matters which perhaps I should mention. There were other defences to the claim which the trial judge specifically said he was not making a decision about, he was dismissing the claim on the two points that I have mentioned. One of those is that the promise was so uncertain that it could not be enforced and that is a matter in the proposed notice of contention, but that matter can be dealt with on the re-trial, if necessary. 16The other matter that should be the subject of comment is the way in which the primary judge disposed of this case. It is galling for trial judges who perceive that a case is probably hopeless to know that they might have to sit for a week and listen to a whole lot of material which in the end they consider is not necessarily going to help them one bit. However, particularly where there is a litigant in person, as the plaintiff was, unfortunately it is usually their duty to hear people out at least to a certain extent, especially where there is no actual motion for the striking out of the claim and everyone has prepared for a trial with copious affidavits and is ready to run the trial. 17At the very least, with respect to his Honour, I would have thought it would have been good practice and a practice that should almost invariably be followed that he not only should have heard the opening address, he should have heard the affidavits on both sides formally read. So far as the lack of parties point is concerned, before doing anything it may be that the primary judge should have given the opportunity of the litigant in person to consult a lawyer to see whether she wished to amend the suit. 18Now, Mr Ash does in his submissions claim a denial of natural justice. I do not think I need go any further than what I have just said. 19It follows that I would propose that leave to appeal be granted, that the draft notice of appeal behind tab 4 of the white book should be treated as a notice of appeal, allow the appeal, remit the case for trial in the Equity Division by a judge other than Gzell J and order that the respondent, if eligible, have a certificate under the Suitors' Fund Act 1951 but the respondent is to pay the costs of the appeal. 20BATHURST CJ: I agree with the reasons of Young JA and the orders which he proposes. 21HODGSON JA: I also agree. 22YOUNG JA: I should have also added that the orders made by Gzell J are accordingly set aside. NEWLINDS: I wonder, there's the question of the costs below of the trial. Now, appreciating Ms Van Dyke was then representing herself. I don't know if the rules provide that if the appeal is allowed the costs below are automatically reversed? YOUNG JA: They don't. NEWLINDS: In my submission the costs of what happened ought properly be costs in the cause. HODGSON JA: I think the usual order would be that they're in the discretion of the judge who hears the case. NEWLINDS: I wouldn't be heard against that. 23YOUNG JA: Costs in the first trial to be subject to the order of the judge who conducts the second trial. 24BATHURST CJ: I agree. 25HODGSON JA: Yes, I agree. 26BATHURST CJ: The orders of the Court will be as pronounced by Young JA. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 July 2011