New South Wales Trustee and Guardian v Philpott [2017] NSWSC 472

Supreme Court New South Wales

Medium Neutral Citation: New South Wales Trustee and Guardian v Philpott [2017] NSWSC 472 Hearing dates: 21 April 2017 Date of orders: 28 April 2017 Decision date: 28 April 2017 Jurisdiction: Common Law Before: Davies J Decision: (1) The Defence and Cross-Claim each filed 3 March 2017 are struck out.

(2) Judgment for the Plaintiff for possession of the property known as 3/394 Bronte Road, Bronte in the State of New South Wales being the whole of the land contained in folio identifiers 3/SP1237 and 15/SP1237.

(3) The Defendant is to pay the Plaintiff's costs of the proceedings. Catchwords: REAL PROPERTY – possession of land – plaintiff as executor seeks possession of land – claim by occupier of a constructive trust for ownership of the land based on proprietary estoppel – prior proceedings by occupier claiming, inter alia, a constructive trust – prior proceedings dismissed by consent – whether issue estoppel – whether Anshun estoppel to the extent the present claim differs from earlier claim – whether abuse of process – defence and cross-claim struck out – summary judgment for the plaintiff

ESTOPPEL – by judgment – issue estoppel – Anshun estoppel – proprietary estoppel – relationship of issue estoppel to abuse of process – whether issue estoppel can arise from consent judgment or dismissal Legislation Cited: Civil Procedure Act 2005 (NSW) NSW Trustee and Guardian Act 2009 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: C G Maloney Pty Ltd v Noon [2011] NSWCA 397 Ekes v Commonwealth Bank of Australia [2014] NSWCA 336 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Land Enviro Corp Pty Ltd v HTT Huntley Heritage Pty Ltd (2008) 72 NSWLR 160; [2008] NSWSC 185 Legione v Hateley (1983) 152 CLR 406 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 Spencer v Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28 State of New South Wales v Williams [2014] NSWCA 177 Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28 Category: Procedural and other rulings Parties: New South Wales Trustee and Guardian (Plaintiff) Anne Elizabeth Philpott (Defendant) Representation: Counsel: M Sneddon (Plaintiff) A Philpott (By leave for the Defendant)