Papantoniou v Brown [2015] NSWCA 168

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Papantoniou v Brown [2015] NSWCA 168 Hearing dates: 6 May 2015 Decision date: 22 June 2015 Before: Beazley P at [1]; Macfarlan JA at [2]; Sackville AJA at [3] Decision: 1. Extend the time for the filing of a notice of appeal until 8 April 2015. 2. Appeal allowed. 3. Set aside Orders (2) and (3) made by Campbell J on 10 June 2014 in relation to the First Cross-Claim. 4. Set aside Orders (2) and (3) made by Campbell J on 10 June 2014 in relation to the Third Cross-Claim. 5. Set aside Orders (2) and (3) made by Campbell J on 10 June 2014 in relation to the Second Cross-Claim. 6. In lieu of the Orders referred to in Order 3 and 4 above, make the following Orders: (a) Dismiss the First Cross-Claim. (b) Dismiss the Third Cross-Claim. 7. Note that on the taking of an account between the appellant (Ms Papantoniou) and the respondents (the Browns), an amount is payable by Ms Papantoniou to the Browns calculated in accordance with these reasons for judgment. 8. Direct the parties to bring in agreed short minutes of order within fourteen days quantifying the amount payable by Ms Papantoniou to the Browns in accordance with these reasons for judgment and apportioning such amount between the Browns. 9. If no agreement is reached, direct that: (a) Ms Papantoniou file her proposed short minutes of order, together with brief written submissions in support, within fourteen days; (b) the Browns to file their proposed short minutes of order together with brief written submissions in support within a further seven days. Catchwords: CONTRACTS REVIEW ACT – procedural fairness - solicitor agrees with two brothers to purchase their sisters' share of co-owned property on the basis that the solicitor borrows the whole of the purchase price on the security of the property and the brothers guarantee the loan – solicitor acts for one of the brothers – solicitor defaults on loan – lender takes possession – brothers seek to set aside mortgage and guarantee in proceedings against the solicitor – primary Judge grants relief under the Contracts Review Act 1980 (NSW) in respect of the original agreement – whether grant of relief available on the pleadings – whether the solicitor denied procedural fairness Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56(1), 90, 100 Contracts Review Act 1980 (NSW), ss 7(1)(b), 8 Conveyancing Act 1919 (NSW), Part IV, Div 6 Family Provision Act 1982 (NSW) (repealed) Law Reform (Miscellaneous Provisions) Act 1965 (NSW), s 3 Supreme Court Act 1970 (NSW), s 63 Suitors' Fund Act 1951 (NSW)