Steiner v Strang [2015] NSWCA 203

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Steiner v Strang [2015] NSWCA 203 Hearing dates: 24 June 2015 Date of orders: 16 July 2015 Decision date: 16 July 2015 Before: Emmett JA at [1] Leeming JA at [63] Simpson JA at [64] Decision: 1 Appeal allowed.

2 Orders made on 19 September 2014 be set aside.

3 Remit the matters raised in the amended cross-summons dated 6 March 2014 to the Equity Division for retrial.

4 Respondents pay the appellant's costs of the appeal.

5 Costs of the first trial be determined by the judge hearing the retrial. Catchwords: CONTRACT – whether a sum of money advanced to the appellant was a gift or a loan (now owed to an estate) – construction of an "acknowledgement", signed after the advance of funds

EVIDENCE – rejection of evidence – whether the primary judge erred in declining to admit evidence as to the circumstances in which the acknowledgement, which had no juridical effect, was made

SUCCESSION – rule in Cherry v Boultbee (1839) 41 ER 171 – whether the acknowledgement limits the range of possible funds from which the "loan" might be repaid to the estate Legislation Cited: Civil Procedure Act 2005 (NSW), s 101 Conveyancing Act 1919 (NSW), s 38 Property Law Act 1974 (Qld), s 45(2) Succession Act 2006 (NSW), Ch 3 Pt 3.2 Uniform Civil Procedure Rules 2005 (NSW), r 28.2, r 51.53 Cases Cited: Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 Cherry v Boultbee (1839) 41 ER 171 Lym International Pty Ltd v Marcolongo [2011] NSWCA 303 Peruvian Railway Construction Co Ltd [1915] 2 Ch 144 Re Ackerman [1891] 3 Ch 212 Re Taylor [1894] 1 Ch 671 Category: Principal judgment Parties: John Steiner (Appellant) Kenneth Ross Strang (First Respondent) Jason Tang (Second Respondent) Representation: Counsel: M Cashion SC with B Michael (Appellant) L Ellison SC (Respondents)