Whall v Stamp [2019] NSWCA 163

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Whall v Stamp [2019] NSWCA 163 Hearing dates: 29 May 2019 Date of orders: 08 July 2019 Decision date: 08 July 2019 Before: Basten JA at [1]; Leeming JA at [18]; Payne JA at [26] Decision: (1) Leave to appeal granted.

(2) Grant the appellant leave (to the extent necessary) to rely on further evidence to establish that he lost the possibility of a different outcome, but otherwise dismiss the appellant's motion dated 22 May 2019.

(3) Dismiss the respondent's motion to call further evidence dated 1 May 2019

(4) Direct that the draft Amended Notice of Appeal in the White Folder stand as the Amended Notice of Appeal.

(5) Appeal allowed.

(6) Set aside orders 1 and 2 made by the primary judge dated 23 November 2018.

(7) Remit the matter to the Equity Division limited to determination of the following matters: (a) the appellant's claim for the payment of damages in lieu of specific performance of any agreement entered into by the parties with respect to an interest in the property other than the leasehold; (b) the appellant's claim for equitable compensation with respect to such an interest; and (c) the appellant's claim for payment for services performed for the respondent which were unremunerated.

(8) Respondent to pay the appellant's costs of the appeal. Catchwords: CIVIL PROCEDURE – motion to remove a caveat – urgent fixture of motion – caveat based on claim to life interest – separate question ordered as to existence of life interest – answer to question finally determined substantive issue – whether order for separate question appropriate given urgency of motion