Tadrous v Tadrous [2012] NSWCA 16

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Tadrous v Tadrous [2012] NSWCA 16 Hearing dates: 24 August 2011 Decision date: 23 February 2012 Before: Young JA at [1] Meagher JA at [2] Handley AJA at [61] Decision: (1) Appeal allowed in part. (2) Set aside Order 2 made by Pembroke J on 3 December 2010. (3) Order that the charge secure $561,360 together with interest on that amount at the pre-judgment rates calculated in accordance with UCPR, r 6.12.8 from 1 December 2003 to 23 February 2012 and thereafter together with interest on the whole sum pursuant to s 101 of the Civil Procedure Act 2005 until discharged. (4) If the parties are able to agree as to the amount, inclusive of pre-judgment interest, that should be ordered in accordance with Order 3, the parties should within 14 days of this judgment lodge with the Court a form setting out consent orders to be made by the Court in chambers which gives effect to that order. (5) If the parties are unable to so agree within that period, they should lodge written submissions as to the orders that should be made, the respondent within 7 days after the time for agreement has expired and the appellant within 7 days thereafter. The Court will then determine what orders should be made on the basis of those submissions. (6) The appellant to pay 90 percent of the respondent's costs of the appeal. [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 Court146s 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 proprietary estoppel - monies advanced by the respondent and her husband to the appellant for development of residential property - oral assurances that following completion of development, appellant would repay money and transfer part of property at cost - whether expectation of the respondent was sufficient to give rise to an equitable estoppel REMEDIES - equitable proprietary estoppel - whether respondent entitled to relief by way of equitable charge - interest - whether primary judge erred in awarding compound interest on monies secured by charge Cases Cited: Cadorange Pty Ltd (In Liq) v Tanga Holdings Pty Ltd (1990) 20 NSWLR 46 Chalmers v Pardoe [1963] 1 WLR 677 Cobbe v Yeoman's Row Management Ltd [2008] 1 WLR 1752 Delaforce v Simpson-Cook [2010] NSWCA 84 Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 Gillett v Holt [2001] Ch 210 Giumelli v Giumelli [1999] HCA 10; (1999) 196 CLR 101 In re Whitehead, Whitehead v Whitehead [1948] NZLR 1066 Morris v Morris [1982] 1 NSWLR 61 Plimmer v Mayor of Wellington (1884) LR 9 App Cas 699 Ramsden v Dyson (1866) LR 1 HL 129 Riches v Hogben [1985] 2 Qd R 292 The Unity Joint Stock Mutual Banking Association v King (1858) 25 Beav 72 [53 ER 563]. Thorner v Major [2009] 1 WLR 776 Category: Principal judgment Parties: Michael Tadrous (Appellant) Tanya Tadrous (Respondent) Representation: Counsel: R E Dubler SC, D A Allen (Appellant) J G Renwick, E Peden (Respondent) Solicitors: Proctor & Associates (Appellant) Wyatt Attorneys (Respondent) File Number(s): CA 2007/258058 Decision under appeal Citation: Tanya Tadrous v Michael Tadrous [2010] NSWSC 1388 Date of Decision: 2010-12-03 00:00:00 Before: Pembroke J File Number(s): SC 2007/258058