Duic v Duic [2013] NSWCA 42

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Duic v Duic [2013] NSWCA 42 Hearing dates: 4 February 2013 Decision date: 01 March 2013 Before: Beazley JA at [1] Macfarlan JA at [2] Barrett JA at [39] Decision: The Court declares that: (1) The appellant has at all times since 2 April 1975 been the beneficial owner of land known as 2A Mellor Street, West Ryde, 2114 being the whole of the land comprised in folio identifier B/396928 (the "Property"). (2) The appellant has not at any time held the Property on trust for the respondent. (3) The respondent presently holds the Property on trust for the appellant pending the performance of Order 4 below. (4) The occupation of the Property (or part of it) by the respondent since 7 December 2010 has been as tenant at will of the appellant. The Court orders that: (1) The appeal is allowed. (2) The cross-appeal is dismissed. (3) The orders of the Court below made on 16 February 2012 and 22 February 2012 are set aside and, for the avoidance of doubt, declared void ab initio. (4) Direct the respondent, within 28 days after the making of these orders, to take all such steps and execute all such documents prepared by the appellant as are reasonably necessary or desirable to enable the Registrar-General to record the appellant as the registered proprietor of the Property, including but not limited to a transfer in registrable form. (5) Order the respondent to pay to the appellant, within 60 days after the date of these orders, mesne profits for the period 7 December 2010 to 7 February 2013 in the sum of $22,666.45 and from 7 February 2013 to the date of these orders in a sum calculated at the rate of $200.08 per week, and to pay within 30 days of the end of each calendar month, mesne profits at the rate of $800 per month for any period in which the respondent has occupied any part of the Property. (6) Order the respondent to pay all reasonable costs associated with the transfer referred to in order 4 above. (7) Order the respondent to pay the appellant's costs in the proceedings below. (8) Order the respondent to pay the appellant's costs of the appeal and cross-appeal. (9) Grant the respondent a certificate under the Suitors' Fund Act 1951, if he is qualified. [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 - proprietary estoppel - father's promises to give property to son - whether son changed his position in reliance on promises Cases Cited: Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1 Brown v New South Wales Trustee and Guardian [2012] NSWCA 431 Delaforce v Simpson-Cook [2010] NSWCA 84; 79 NSWLR 483 Evans v Evans [2011] NSWCA 92 Giumelli v Giumelli [1999] HCA 10; 196 CLR 101 Waddell v Waddell [2012] NSWCA 214 Category: Principal judgment Parties: Josip Duic (Appellant) Emil Duic (Respondent) Representation: Counsel: J O' Sullivan (Appellant) R Gration (Respondent Solicitors: Penhall & Co Lawyers (Appellant) Culas-Netto Solicitors (Respondent) File Number(s): CA 2012/71406 Decision under appeal Jurisdiction: 9111 Citation: Josip Duic v Emil Duic [2012] NSWSC 76 Date of Decision: 2012-02-16 00:00:00 Before: Einstein J File Number(s): SC 2011/64779