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 CIVIL PROCEDURE – appeal – procedural unfairness – determination of motion to remove caveat did not require final determination of existence of life interest – whether appellant denied opportunity to prove existence of agreement to confer life interest EVIDENCE – further evidence on appeal – need to show possibility of different outcome – application of Supreme Court Act 1970 (NSW), s 75A to evidence of procedural unfairness Legislation Cited: Property (Relationships) Act 1984 (NSW), s 20 Real Property Act 1900 (NSW), ss 74MA, 75K Residential Tenancies Act 2010 (NSW), ss 13, 85 Supreme Court Act 1970 (NSW), ss 75A, 101, 103 Uniform Civil Procedure Rules 2005 (NSW), rr 28.2, 51.51, 51.53 Cases Cited: Akins v National Australia Bank (1994) 34 NSWLR 155 Blazevski v Judges of the District Court of NSW (1992) 29 ALD 197 Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 92 ALJR 780 House v The King (1936) 55 CLR 499; [1936] HCA 50 Lawrence v Gunner (No 3) [2016] NSWCA 18 Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326; [2015] HCA 40 Newton v Ellis [2012] NSWCA 106 Nobarani v Mariconte [2018] HCA 36; 92 ALJR 806 Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54 Tjiong v Tjiong [2012] NSWCA 201 Category: Principal judgment Parties: Arthur Whall (Appellant) Audrey Edith Stamp (Respondent) Representation: Counsel: J E F Brown / N Condylis (Appellant) J Clarke SC / M Fernandes (Respondent) Solicitors: Owen Hodge Lawyers (Appellant) Ronald S Czinner & Co (Respondent) File Number(s): 2019/00021362 Publication restriction: None Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity - Duty List Citation: [2018] NSWSC 1811 Date of Decision: 23 November 2018 Before: Lindsay J File Number(s): 2018/00355313 [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.] Judgment 1. BASTEN JA: In November 2018 the respondent, Audrey Edith Stamp, sought to sell a property comprising two blocks of land in Hunters Hill. The appellant, Arthur Whall, resided in a cottage on part of the land. He claimed to hold a life interest, entitling him to reside in the cottage. 2. In December 2017 Ms Stamp had given Mr Whall notice that she intended to sell the property and required him to vacate the premises. In January 2018 she took steps to terminate his residential lease. On 20 September 2018 he was informed that an auction had been fixed for 24 November 2018. On 13 November 2018 Mr Whall's solicitors lodged a caveat claiming a life interest based on an oral agreement. 3. On 19 November 2018 Ms Stamp filed a summons in the Equity Division seeking an order that Mr Whall remove the caveat by 4pm on Friday, 23 November 2018; no other substantive order was sought. On 21 November 2018 Mr Whall filed a cross-summons seeking a declaration that he had a life interest in the property, an order for specific performance of the agreement pursuant to which he held the life interest and, in the alternative, damages in lieu of specific performance, or equitable compensation. 4. In circumstances fully described by Payne JA below, the primary judge (Lindsay J) directed that a separate question be determined, namely whether Mr Whall had any right, title or interest in the property. By judgment delivered on 23 November 2018 he made orders answering that question in the negative and requiring the removal of the caveat no later than 26 November 2018. On 26 November he delivered reasons for those orders and, on 29 November 2018 ordered that Mr Whall pay Ms Stamp's costs of the determination of the separate question. 5. Mr Whall (the appellant) appealed from the judgment and orders in the Equity Division. His principal ground of appeal was that he had been denied procedural fairness in circumstances where Ms Stamp (the respondent) had sought no more than removal of the caveat, without embarking on proceedings requiring determination, on a final basis, of whether he was entitled to a life interest in the property. 6. The appellant could not complain (and did not complain) of the determination of that issue. The chronology briefly noted above demonstrates that his belated lodgement of a caveat, 10 days prior to the auction, disentitled him from resisting the urgent determination of the proceedings for removal of the caveat. The result may have been that he lost an opportunity to remain on the premises; it did not follow that he should lose finally an opportunity to recover damages or equitable compensation from the respondent for being deprived of his interest in the property, if it were determined at a final hearing that he had such an interest. In short, his complaint was that the grant of final relief, resulting from the answering of the separate question, unfairly deprived him of the opportunity to maintain his monetary claim. Further evidence on appeal 1. There was a procedural issue raised in this Court, both parties seeking to call further evidence. The appellant's evidence was directed to the demonstration of prejudice caused by the urgent resolution of the special question, in circumstances where he was not able to call at trial all the available evidence supportive of his claimed interest in the property. The tender of evidence for that purpose raised two separate legal principles. 2. First, there appears to have been an assumption that such evidence was "further evidence" pursuant to s 75A(7) of the Supreme Court Act 1970 (NSW) and, there having been a hearing on the merits, should not be received "except on special grounds", as provided for in s 75A(8). To the extent that such evidence was tendered to demonstrate that there had been procedural unfairness, because the appellant had been deprived of the possibility of a different outcome, it was admissible, as explained below. 3. The second issue is whether it was incumbent on the appellant to demonstrate what would have occurred if procedural fairness had been observed. [1] Usually it will be possible for a claimant alleging procedural unfairness to demonstrate that he or she has been deprived of "the possibility of a successful outcome", being the standard identified in Stead v State Government Insurance Commission, [2] without calling evidence as to what steps would have been taken had a reasonable opportunity been provided. It is not for the Court to assess the consequences of what appears to have been a denial of procedural fairness. In Stead, noting the powers of the Full Court of the Supreme Court of South Australia determining an appeal by way of rehearing, the Court stated: [3] "However, when the Full Court is invited by a respondent to exercise these powers in order to arrive at a conclusion that a new trial, sought to remedy a denial of natural justice relevant to a finding of fact, could make no difference to the result already reached, it should proceed with caution. It is no easy task for a court of appeal to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome of the trial of an issue of fact. And this difficulty is magnified when the issue concerns the acceptance or rejection of the testimony of a witness at the trial." [4] 1. Recent administrative law cases involving allegations of procedural unfairness have raised an issue as to whether an appellant was required to demonstrate the materiality of the error, [5] a criterion not previously adopted. [6] The conventional approach was to treat the 'no possibility of a different outcome' test as providing a reason, in the exercise of a judicial discretion, for the court to refuse relief, despite there being procedural unfairness. However, in Nobarani v Mariconte, [7] delivered on the same date as Hossain, a unanimous High Court, dealing with an appeal under s 75A of the Supreme Court Act, adopted the Stead test as demonstrating a substantial miscarriage of justice. Without a substantial miscarriage of justice a retrial must be denied, pursuant to Uniform Civil Procedure Rules 2005 (NSW), r 51.53(1). The Court stated at [39]: "In summary, a power under s 75A(10) to order a new trial arises where a denial of procedural fairness causes some substantial wrong or miscarriage. The denial of procedural fairness will cause a substantial wrong if it deprived the affected person of the possibility of a successful outcome. Unless the other party can show some reason for the exercise of discretion not to order a new trial, the power will be exercised to order a new trial. One reason that might sometimes be sufficient, and upon which the respondent relied, is where no useful result could ensue because a properly conducted trial will not make a difference." It is difficult to discern a practical difference between the test in the second sentence (identifying a necessary criterion of a miscarriage) and the example in the fourth sentence of a criterion warranting discretionary refusal of a new trial. 1. It is not necessary for present purposes to resolve the apparent dilemma; it is sufficient to conclude that, on a claim of procedural unfairness, the appellant was entitled to call evidence in order to demonstrate that he had been deprived of the possibility of a different outcome. This being an appeal governed by s 75A of the Supreme Court Act, the Court has power to receive such evidence under subs (6) and (7). So that the opposing party and the Court are on notice of the intention to call evidence and the content of the proposed evidence, it was appropriate to file a notice of motion and the evidence by way of affidavits prior to the hearing, in accordance with Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 51.51. An appeal based on a denial of procedural fairness resembles an application for judicial review under s 69 of the Supreme Court Act. Either that fact provides "special grounds" for the purpose of s 75A(8), or s 75A(8), read purposively, is directed to evidence relevant to the substantive issue in the proceedings below, namely whether the appellant had a life interest in the property, and is not engaged. 2. On the other hand, it is neither necessary nor appropriate for this Court to assess the weight of the additional evidence proffered by the appellant. It is sufficient to say that the respondent did not demonstrate that it was inherently inadmissible or implausible. The respondent's proffered evidence in reply could only go to a determination of the substantive issue, which is not the task for this Court to undertake, hearing all but the key witnesses. The respondent's application to call further evidence should be rejected. Procedural fairness 1. It is necessary to ask whether the trial judge, adopting a pragmatic approach which had much to recommend it in practical terms, nevertheless overstepped the mark and deprived the appellant of an opportunity to run a case which was available to him, even if he were ordered to remove the caveat. With the benefit of hindsight, one can see that the respondent was unfairly required to pursue all aspects of his claim within a timeframe which was unnecessarily proscribed. That conclusion depends on three propositions. First, he had no basis to resist an immediate determination of the application for removal of the caveat; he had delayed in lodging a caveat and, being without assets, could give no undertaking as to damages in seeking an adjournment which would mean that the auction would be postponed. Secondly, although the respondent had consented to the formulation of the separate question, she had not requested the final determination of that issue prior to the auction. Thirdly, although the appellant had ultimately consented to the formulation of the separate question, he had maintained steadfastly his objection to that question being finally determined within the timeframe fixed by the auction date. Leave to appeal 1. Although s 103 of the Supreme Court Act requires that an appeal from the determination of a separate question only be by leave of this Court, an appeal lies as of right where orders consequential upon the determination to the separate question are made resolving the proceeding. [8] It is not necessary to determine whether leave is required in circumstances where the orders made finally disposed of the substantive relief claimed by the parties. Where that is the effect, if not the form of the orders made, leave should readily be granted and should be granted in this case. (There were two other outstanding issues in this case, namely, (i) whether the appellant is entitled to a payment by way of quantum meruit for services performed for the respondent which were unremunerated and (ii) a claim for a life interest under s 20 of the Property (Relationships) Act 1984 (NSW).) The appellant should not be required, by a refusal of leave to appeal against the answer to the separate question, to be limited to that consequential outstanding relief. I would therefore grant leave to appeal as proposed by Payne JA. Other orders 1. Although, on one view, the order for determination of a separate question is spent, the fact that the declaration made upon determination of that question is to be set aside means that the question has not been answered. Had there been a separate question, it should have been directed to the right of the respondent to have the caveat withdrawn. That order has been made, the caveat has been withdrawn, and accordingly it is not necessary to formulate such a question. However, it follows that order (1) made on 23 November 2018, specifying a separate question, should be set aside. 2. On the other hand, there is much to be said for the view that the respondent (the plaintiff below) was entitled to her costs of the proceedings because the substantive order she sought, namely that the caveat be withdrawn, was made and is not challenged. Although the appellant wished to go further, the evidence which he in fact called in support of his life interest claim was relevant to the question whether the Court should order that the caveat be withdrawn. Accordingly, it was appropriate that he pay the whole of the plaintiff's costs of the trial below. 3. I otherwise agree with the reasoning of Payne JA and with the orders he proposes. 4. LEEMING JA: Not without regret, I agree with the orders proposed by Payne JA, and (subject to what follows) with his Honour's reasons. I also agree with Basten JA's reasons. One thing emerging palpably from the transcript of 19-23 November 2018 is the considerable efforts to which the duty judge, faced with an extremely busy list, went in order to attempt sensibly to resolve the dispute between the parties. The urgency had been artificially created by the late lodging of a caveat by Mr Whall, contrary to his agreement with Mrs Stamp which had been reflected in orders made in NCAT binding him, and in circumstances where it seemed probable that the proffered undertaking as to damages would not go far to compensating the vendor, in the event that the claimed life estate was not made out. The agreement would have sustained interlocutory injunctive relief, but Mrs Stamp seems never to have sought to enforce Mr Whall's promise or NCAT's orders, as opposed to litigating the disputed caveatable interest. 5. It is easy to see how in most cases, a caveat filed in the days before an auction by a caveator who might well be shown to be a man of straw unless his claim were made out, could only be satisfactorily resolved (absent agreement to some interlocutory regime) by an urgent final hearing. 6. Repeatedly, his Honour directed counsel (who may be assumed only to have been briefed shortly beforehand) to focus upon the real issue dividing their clients. And Payne JA's reasons demonstrate that the primary judge literally gave as much time as possibly could be given to accommodate preparation for a final hearing – it seems to have commenced at around 3:45pm on the Friday, and completed late in the evening. 7. However, there is a highly unusual feature to this case, which appears not to have been squarely pointed out to the primary judge. This vendor was prepared, so late as the Thursday afternoon, to adjourn the hearing of the application to remove the caveat until the time for the auction had passed. The likely reason for that was that she had received an acceptable pre-auction offer, which indeed led to an exchange of contracts late on the Friday evening. 8. That is a highly unusual circumstance. It was not something a busy duty judge would likely infer. Parts of the transcript are imperfect and confusing, but I doubt that that circumstance was made as pellucidly clear to the duty judge as was required. Had that occurred, there is reason to think the position would have been quite different. The matter which plainly weighed upon the duty judge – the inutility of an interlocutory determination of Mr Whall's claimed life estate the day before an auction – would have been evaluated in a different light. The vendor's unusual stance materially diminished the need for an urgent final hearing. And this was a case, unlike many, where the determination of the interlocutory question was more straightforward than a final hearing. 9. Were it not for that highly unusual circumstance, I think I would have concluded that there was no denial of procedural fairness. Although from time to time it appeared that the appellant contended that a certain minimum number of days' notice was necessary before a final hearing, he ultimately accepted that "there will be examples where there needs to be a final hearing within three days." That concession was properly made. There is no such absolute minimum. That is not to deny that courts are bound to accord procedural fairness. Of course they are. It is to assert that the content of the duty in any particular case is informed by the exigencies of the hearing, including urgency. The more urgent the need for an order, the less time that is available for the other side to respond. Sometimes courts make orders without hearing from the other side at all (for example, most asset preservation orders and Anton Piller orders) or with a severely curtailed hearing. That said, ordinarily only such orders as are necessary given the seriousness and imminence of the threat will be made in such circumstances. 10. At a time which is not disclosed on the evidence, Mr Whall chose to resile from his agreement with Mrs Stamp, reflected in NCAT's orders. At a time not explained in the evidence, the appellant's solicitor had drafted the "detail supporting the claim" contained in the caveat, and must have realised that it was apt to provoke urgent contested litigation. Although there was complaint about the limited time to prepare evidence on a final basis to sustain the claimed caveatable interest, I would not save for one thing conclude that Mr Whall had established that there was insufficient time for the hearing to have been procedurally fair, given the timing was dictated in substance by the appellant. 11. However, in circumstances where on the afternoon of the Thursday the vendor had accepted, and indeed positively propounded, the desirability of a delayed hearing, being a highly unusual circumstance which appears not to have been sufficiently raised with the primary judge, I conclude that ground 1 of the appeal is made out. 12. PAYNE JA: This is an application for leave to appeal from orders made by Lindsay J on 23 November 2018. Reasons for making those orders were given on 26 November 2018: Stamp v Whall [2018] NSWSC 1811. 13. The respondent, Mrs Stamp, is a 90 year old widow who lives in Hunters Hill. Following the death of her husband in April 2018, she became the registered proprietor of a property in Hunters Hill where she and her husband had lived for at least 40 years. She also became the registered proprietor of a property next door, where Mr Whall, who I will refer to in these reasons as the appellant, a single man now aged 71, resided for approximately 30 years. 14. The principal issue in this case was the terms upon which the appellant occupied the subject property. The respondent accepted that the appellant occupied the property pursuant to a "residential tenancy agreement" within the meaning of s 13 of the Residential Tenancies Act 2010 (NSW). The appellant contended that he was entitled, in equity, to a life estate in the property. 15. The case came before the primary judge sitting as the Equity Division duty judge in November 2018, in circumstances where the appellant had lodged a caveat concerning the property in the days immediately prior to an auction where the property was to be sold, subject to the appellant's lease. 16. On 23 November 2018, Lindsay J declared that the appellant had no right, title or interest to the property save for the leasehold interest sought to be terminated. As a result, the property was sold to a third party immediately after orders were made by his Honour. The appellant seeks leave to appeal from that declaratory order and ancillary orders made at that time. We were informed from the bar table, without demur, that the appellant recently left the subject property and no longer resides there. Relevant facts 1. On 22 June 1988, the appellant entered into a lease of the Hunters Hill property, then owned by the respondent's husband, for a fixed term of six months. The lease contained a provision for holding over on a monthly tenancy. For many years the respondent, her husband and the appellant were close friends. After a time, the respondent and her husband came to believe that the appellant was experiencing financial difficulties. It is common ground that, from about 30 November 2011, the appellant stopped paying rent and instead provided some maintenance and assistance in maintaining both properties to the respondent and her late husband. 2. On about 2 April 2013, an agreement was made between the appellant and the respondent. A number of activities said to comprise "examples of caring for Audrey Stamp" were set out in a document. The agreement records that "the above work and services provided is in lieu of rents and any other costs incurred by me to date except for painting and repairs to [named premises] up to 2/4/2013". The document was signed by the appellant, the respondent and witnessed by Mr Lo Surdo, the respondent's accountant and Ms Teh, a niece of the respondent. The circumstances in which that document came into existence and the content of an additional oral agreement, if any, made prior to or at that time by the appellant and the respondent are matters hotly in contest between the parties. 3. On 28 July 2014, the respondent made a will (since revoked), which provided a legacy to the appellant of $400,000 "from the proceeds of the sale of [the property where the appellant resided] provided he survives [the respondent] and vacates the said property within six (6) months of [the death of the respondent] to enable the said property to be sold with vacant possession". 4. In 2017, the friendship between the appellant and the respondent and her husband began to deteriorate. The respondent decided that, to facilitate arrangements for the ongoing care of her husband and under a power of attorney, she would sell the property where the appellant was living. It is common ground that in 2017 the respondent asked the appellant to vacate the property. 5. On 22 January 2018, the appellant was served with a formal "Notice to Terminate Tenancy Agreement". The appellant, pursuant to s 85 of the Residential Tenancies Act, was given 90 days to vacate the property. The appellant did not vacate the property. On 6 April 2018, the respondent's husband died. On 26 June 2018, the respondent was granted probate of her husband's will. 6. On 20 September 2018, the respondent's real estate agents wrote to the appellant informing him that the property would be offered for sale by public auction on 24 November 2018. Vacant possession of the property would be required no later than 15 October 2018. 7. On 4 October 2018, the appellant's solicitors replied that they had advised the appellant not to vacate the property until a settlement had been entered into concerning his (at that stage unspecified) claims in respect of the property. 8. On 5 October 2018, the respondent's real estate agents wrote to the appellant acknowledging receipt of the letter, confirming that the subject property had been placed on the market for sale and serving on the defendant a notice under the residential lease requiring access to the subject property to facilitate a marketing program. 9. On 8 October 2018, the appellant's solicitors responded that "until [the appellant's] rights to possession are terminated by agreement it is far too early to commence the sales process" and requested a copy of the lease. 10. On 9 October 2018, the respondent's real estate agents provided the appellant's solicitors with a copy of the lease and stated that a failure to provide access to the property for marketing purposes would be regarded as a breach of the lease. An application to the NSW Civil and Administrative Tribunal ("NCAT") seeking vacant possession of the property was foreshadowed. 11. On 9 October 2018, the appellant's solicitors responded, disputing the currency of the lease and stating that the appellant was under no obligation to allow access to the subject property. The letter threatened "injunctive proceedings" in trespass if the agents exercised purported rights of access to the subject property. 12. On 16 October 2018, the respondent commenced proceedings in NCAT against the appellant seeking vacant possession and orders for access to the property for the purposes of auction. 13. On 18 October 2018, the appellant's solicitors wrote to NCAT. It was asserted that the proceedings involved complex questions of law and that "the 1988 lease was vacated pursuant to a conversation between [the respondent], [the appellant] and in the presence of the respondent's niece Margaret her power of attorney [sic] together with her accountant". That letter was said to be accompanied by "a copy of notes taken on 2 April 2013", which were Annexure "A" to the solicitor's letter, but the identification of the "notes" in the evidence in this Court was inadequate. The solicitor's letter further stated that "for many years prior and since our client has provided substantial care far in excess of the matters noted on annexure 'A'". It is unclear who made these notes, or if in fact the reference to "notes taken" refers to the signed memorandum dated 2 April 2013 which was in evidence. 14. On 2 November 2018, the respondent's solicitors protested what they said were inaccuracies in the appellant's solicitor's letter to NCAT and disputed the allegation that the 1988 lease had been "vacated". 15. On 8 November 2018, NCAT made an order by consent authorising the respondent or her agents to enter the subject property on 24 November 2018 for the purpose of auctioning the property. The evidence was scant about the circumstances in which this order was made but it is clear that the appellant consented to it. It is also clear that the hearing before NCAT about the appellant's rights under the residential lease was listed for a date after the proposed auction. No complaint was made by the respondent to the primary judge about the appellant's subsequent conduct being inconsistent with the consent given in the NCAT proceedings to enter the premises for the purposes of the auction. 16. On 13 November 2018, the appellant lodged a caveat in relation to the Hunters Hill property. The caveatable interest claimed was a "Life Estate" by virtue of "Agreement" between Arthur Whall and Audrey Edith Stamp. Proceedings in the Equity Division 1. On 19 November 2018, the respondent appeared ex parte and filed in court a summons in the Equity Division, seeking only limited substantive relief being: 1. that [the appellant] remove the caveat lodged against the subject property by 4pm on Friday 23 November 2018; 2. costs and interest on costs; and 3. any other order that the Court deems fit. 1. The following exchange occurred: "HIS HONOUR: …. Is it your client's intention that the defendant has no right, title or interest? [Counsel for Mrs Stamp]: Yes. HIS HONOUR: You should include that in the summons because just an order for removal of caveat doesn't mean anything. [Counsel for Mrs Stamp]: Yes, your Honour." 1. Despite this exchange no amended relief was ever sought by the respondent. 2. The summons was listed before the duty judge at 2pm on 20 November 2018. Counsel for the respondent proposed to the Court that "the s 74MA [removal of the caveat] application … be heard this week". His Honour returned to the issue he had raised in the ex parte hearing the day before: "HIS HONOUR: … This gets back to the problem of filing a summons that simply seeks withdrawal of a caveat. It does not make a great deal of sense." 1. His Honour then explained to the parties that, "I'm not going to give you a guarantee whatsoever that you will get anything in the nature of a final hearing. It just seems to me not possible. I think that we need to get the evidence on quickly, and each of you need to consider some interlocutory regime that enables the matter to be determined more quickly but not necessarily this week". After counsel for the appellant told the Court his client was prepared to give an undertaking as to damages the duty judge said: "HIS HONOUR: What I propose to do is set the matter down for further consideration on Thursday at 2.00pm, which means that people will need to get their skates on earlier than that. Is all the plaintiff's evidence complete? [Counsel for Mrs Stamp]: Yes, your Honour – sorry, could I clarify that? In the plaintiff's affidavit, there are witness statements from NCAT which obviously are hearsay. But we put them on just so all the information was in the plaintiff's possession. They should be, probably, resworn as affidavits. HIS HONOUR: How many witnesses does that mean? [Counsel for Mrs Stamp]: Just two. …" 1. The duty judge ordered that the appellant file and serve by 5pm on 21 November 2018 any cross-summons or affidavits in opposition to the summons or in support of the cross-summons and listed the matter before the duty judge at 2pm on 22 November 2018. His Honour concluded: "HIS HONOUR: I will see the situation on Thursday afternoon and just see where we are at. But at the very least, it seems to me, if the caveat is able to be continued beyond this week, (a) you better give an undertaking as to damages, and (b) some steps ought to be made to either pay, or secure or provide security for the costs thrown away by any auction going off. Okay?" 1. On 21 November 2018, the appellant filed a cross summons seeking the following orders: "Interim Relief 1 The Court orders that the caveat bearing number AN855390 is to remain or be extended under s 74MA of the Real Property Act 1900 (NSW). 2 In the alternative, the Court declares that upon the defendant's counsel giving to the Court the usual undertaking as to damages, until the final hearing of this matter or further order from the Court, the plaintiff is restrained from auctioning or otherwise dealing with, or evicting the defendant from, the [Hunters Hill property]. Final Relief 3 The Court declares that through the parties' dealings and/or by entering any agreement or agreements, by operation of law, interests under the lease dated 20 June 1988 were surrendered. 4 The Court declares that the defendant has a life estate in the Property. 5 The Court orders that the plaintiff is not to interfere with the defendant's possession of the Property. 6 The Court orders that any agreement entered into by the parties with respect to the life estate promised to the defendant be specifically performed by the plaintiff. 7 Further and in the alternative, the Court orders that the plaintiff pay the defendant damages in lieu of specific performance any agreement entered into by the parties under s 68 of the Supreme Court Act 1970 (NSW). 8 Further and in the alternative, the Court orders that the plaintiff pay the defendant equitable compensation. 9 Further and in the alternative, the Court orders that the plaintiff pay the defendant restitution for the services he performed to the plaintiff which were unremunerated. 10 Further and in the alternative, the Court orders that the defendant is entitled to a life estate or any other interest the court finds appropriate under s 20 of the Property (Relationships) Act 1984 (NSW). 11 The Court orders that the plaintiff pay interest under s 100 of the Civil Procedure Act 2005 (NSW). 12 The Court orders that the plaintiff pay the defendant's costs of the proceedings." 1. On 22 November 2018, the matter returned to the Court. The Court was told by counsel for the respondent that he had agreed with counsel for the appellant that the interlocutory dispute, about whether the caveat should be removed, should be adjourned and heard on "5 December … subject to the Court's convenience". 2. After discussion of the preparedness of the appellant to address that case, counsel for the respondent repeated his initial application: "[Counsel for Mrs Stamp]: My application is to move on the s 74MA prayer for relief." 1. Counsel then appearing for the appellant had the following exchange with the primary judge relevant to this question: "[Counsel for the appellant]: I understand that, your Honour. The application, as I understand it, is to remove a caveat. Traditionally, that's seen as an interlocutory type of application. HIS HONOUR: They say you have no right, title or interest – I recorded in the orders yesterday – that you have no right, title or interest apart from the lease. If you want to concede that you don't have a life estate, if you want to concede that you've only got a lease that will get rid of these proceedings for practical purposes. But you're claiming a life estate, which then puts it beyond the power of NCAT to make a determination as to what the interests were. [Counsel for the appellant]: That might be so. My main concern is procedural fairness. My client has – HIS HONOUR: And I'm not denying you procedural fairness, but you can't do something at the last moment and then complain that you don't have a lot of time. I gave you from yesterday, today – or was it day before yesterday. You can have until tomorrow, and then we'll reassess the situation. [Counsel for the appellant]: Court pleases. HIS HONOUR: If you want to have a broader debate, you've got to come to some terms as to how the parties can each accommodate their interests. [Counsel for the appellant]: It was my understanding that there was an agreement that the parties could put the hearing off at least until 5 December so that we can – HIS HONOUR: That was an agreement between whom? [Counsel for the appellant]: Between counsel. HIS HONOUR: Was I party to that agreement? [Counsel for the appellant]: No, your Honour. HIS HONOUR: I'll stand the matter over until 10 o'clock tomorrow on the basis that if the Court can deal with the matter as a final hearing, it will be dealt with. If I can't deal with it as a final hearing for any reason, consideration will be given to interlocutory relief. So you need to get your act together and either be ready to run the final hearing or, alternatively, to put forward a persuasive application as to why it shouldn't go ahead. Such an application would be accompanied, one might have thought, by suggestions of an interlocutory regime." 1. At the conclusion of the hearing on 22 November, the primary judge also encouraged the parties to agree upon the formulation of a separate question pursuant to r 28.2 of the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") and made the following notation: "3. Reserve for further consideration whether an order should be made under rule 28.2 of the Uniform Civil Procedure Rules 2005 (NSW), providing for determination as a separate question the question whether the defendant has no right, title or interest in the land known as [the Hunters Hill property] other than a leasehold interest which, in proceedings pending in NCAT, the plaintiff seeks to have terminated by orders made under, or by reference to, the Residential Tenancies Act 2010 (NSW)." 1. On Friday 23 November 2018, the matter returned to the duty list. The respondent's counsel repeated at the outset that the application made was "to the extent your Honour can accommodate it we move on the summons today". It will be recalled that the only relief sought in the summons was the removal of the caveat. 2. After a considerable delay, the responsibility for which is not presently relevant, a separate question was formulated by the parties and presented to the Court after lunch. An adjournment application was then made by the appellant's counsel and the following exchange occurred: "[Counsel for the appellant]: Your Honour, if the separate question was heard, if you gave us just a bit more time to prepare it properly, so another week at least. HIS HONOUR: But how, the property is going for auction tomorrow. [Counsel for the appellant]: Yes, your Honour. HIS HONOUR: You filed a caveat at the last moment, right, designed, one suspects, to frustrate the auction. You've had a week to get your evidence together when you lodged your caveat. If you can suggest, if you can advance some way that that aspect of the case, which seems to me to be a hard run, can be dealt with then everything travels at a more leisurely pace, so be it, but at the moment I haven't heard anything. [Counsel for the appellant]: If my friend, originally the position was that we were going to consent to having this separate question determined next week. My friends, as I understood, were prepared to take the risk of selling the property with the caveat and then succeeding on that separate question and the issue goes away. … [Counsel for the appellant]: … Well, at the moment, then, I have instructions to make an adjournment application. I know your Honour is against me on the application— HIS HONOUR: I'm not against you. I'm wanting to know, is there an alternative way of proceeding? If you can tell me there's an alternative way of proceeding, I will happily embrace it. [Counsel for the appellant]: Your Honour there might not be an alternative way but that doesn't mean that my client is not being denied procedural fairness at some level. … [Counsel for the appellant]: Unfortunately, your Honour, I can't propose the optimal solution. All I can provide your Honour is with reasons why we're seeking an adjournment, and I just— HIS HONOUR: Well, you don't solve the problem." 1. The primary judge subsequently gave the following reasons for denying the adjournment application: "[26] In the morning on 23 November 2018 I declined an application by the defendant for an adjournment of the hearing in circumstances in which: (a) any adjournment of the proceedings (without a determination whether the defendant was entitled to maintain a caveat claiming a life estate in the subject property) was likely to impede the plaintiff's scheduled auction sale; (b) the defendant had been on notice of the auction sale since at least 20 September 2018; and (c) he had lodged his caveat against the title of the subject property only on 13 November 2018, a date too late to allow the plaintiff an opportunity to serve a "lapsing notice" pursuant to the Real Property Act 1900 (NSW), section 74J. [27] Having created a situation in which the plaintiff was in urgent need of a determination whether the defendant is entitled to a life estate in the subject property, the defendant could not complain that, even if it caused the plaintiff's auction plans to miscarry, he was in need of a more leisurely approach to a final hearing of his claim to a life estate." 1. After rejecting the appellant's application for an adjournment the Court proceeded to consider making an order for determination of a separate determination of a question. The appellant did not consent to the making of that order. The respondent's counsel then said: "[Counsel for Mrs Stamp]: Your Honour, I don't want to throw a spanner in the works, but I've taken what has fallen from your Honour on board, it was my mistake not to include a declaration effectively in the same form as the separate question, [which] should have been in the summons. HIS HONOUR: Anyway, we've got the summons, moving on the summons. [Counsel for Mrs Stamp]: Yes." 1. It is clear that the summons provided no basis for the proposed separate question. After a further delay, his Honour then made the order for the separate question. Counsel for the appellant renewed his application for an adjournment: "[Counsel for the appellant]: Excuse me, your Honour, just while you're making order, can I respectfully request that a notation be made that a formal adjournment application was – HIS HONOUR: No. It will be in the transcript. [Counsel for the appellant]: I understand. May I, if your Honour pleases, may I have a moment to just put on the transcript the reasons why I was seeking the adjournment? HIS HONOUR: No. We've had the chance, we've had that debate, several times. We don't have time for you to try to set up something for the Court of Appeal, right? If you would spend at least a bit of time trying to solve the problem instead of trying to create problems it would be a lot easier. [Counsel for the appellant]: Yes, your Honour." The evidence before the primary judge 1. On 23 November 2018, the hearing of the separate question took place. The following affidavits were read at the hearing by the appellant: 1. the affidavit of Mr Arthur Whall, dated 21 November 2018 with an attached exhibit bundle; 2. the affidavit of Dr Lindsay Stoddart dated 21 November 2018; and 3. the second affidavit of Dr Lindsay Stoddart dated 22 November 2018. 1. The following affidavits were read at the hearing by the respondent: 1. the affidavit of Mrs Audrey Stamp, dated 19 November 2018 with an attached exhibit; 2. the affidavit of Ms Margaret Teh, dated 21 November 2018; 3. the affidavit of Mr John Vincent, dated 21 November 2018; and 4. the affidavit of Mr Kevin Bell dated 21 November 2018. 1. The following witnesses were cross-examined: 1. Mrs Stamp; 2. Ms Teh; and 3. Mr Whall. 1. The appellant in his affidavit deposed that in late 2011 he had the following conversation with the respondent: "Whall: Do you have any family that would help you at home? Stamp: No, all my family are too busy with their own lives. Whall: Alright. If I am going to provide care for you, I would need some form of housing security. Stamp: I agree. Whall: OK. If I work for you and help you manage your home, I would need housing security. Stamp: Yes. I agree. You do need housing security. Whall: I don't want to be thrown out by your family. Can we put this in writing that I can live in the property after you die? Stamp: Yes. I'll sign whatever you want." 1. The appellant in his affidavit deposed that in early 2012 he had the following conversation with the respondent: "Whall: I would like to put something in writing that you would guarantee that I could stay in the property after you passed away. Stamp: Yes. I will sign that document." 1. The appellant in his affidavit deposed that in mid-2012 he had the following conversation with the respondent, in the presence of another friend, Ms McDonald: "Whall: Because of all the work I am doing and support I'm giving, I can remain in the property continuously even after Audrey dies. I will be provided for. McDonald: You should be given all the support and help that you give Audrey. Stamp: Yes. That is a good idea. Yes he can stay. Thank you Arthur for all you do. You have somewhere to live for the rest of your life and you will be provided for." 1. The appellant gave evidence of a conversation at the 2 April 2013 meeting referred to at [32] above with the respondent's accountant, Mr Lo Surdo: "Whall: Here is the draft list [of tasks done by the appellant for the respondent] Tony [Lo Surdo]. Mr Lo Surdo: You have done more than a son would. Whall: What about all the extra work I have done on [the subject property] regarding the renovations? Mr Lo Surdo: How much did you spend on the [subject property] renovations? Whall: It cost me about $7,000. Mr Lo Surdo: Okay, I'll make a note of it on the document. Whall: Can you also include the promise that [the respondent] made to me that I could stay living in [the subject property] after her death? Mr Lo Surdo: No, you need a lawyer." 1. The respondent in her affidavit deposed that "I never made any promises to the defendant about him remaining in the property after my death". She gave evidence that in the April 2013 meeting with the appellant, Mr Lo Surdo and Ms Teh, it was agreed that the appellant's outstanding and future rent would be waived on the basis that he would assist the respondent for at least 10 hours per week, and that the respondent would pay him $700 per fortnight for those services. The respondent instructed her bank to remit $700 per fortnight to the appellant. This payment authority was cancelled on 1 May 2018. 2. Ms Teh deposed that it was agreed in a meeting on 2 April 2013 that the appellant would provide 10 hours assistance per week and be paid $35.00 per hour. Ms Teh deposed that the appellant's execution of these duties had been "random and intermittent since 2014". 3. In cross-examination the respondent agreed that she had entered into an "arrangement" with the appellant in 2011 or 2012. The appellant stopped paying rent in December 2011. By mid-2011, the appellant was providing some assistance to the respondent. The respondent maintained that it was not part of the arrangement that the appellant could remain in the property after she passed away. She "may have" told the appellant that he could remain in the subject property after her death. She agreed that she said to the appellant that after she passed away "he could reside [in the premises] but he couldn't own it". The respondent gave evidence that she needed to sell the property as she needed money to be able to survive. Despite having assets valued at over $7 million, the respondent rejected the proposition that she was a wealthy woman. 4. In cross-examination Ms Teh gave evidence that the "formal" agreement between the appellant and the respondent may have been larger than what was recorded in April 2013, in that it recorded the agreement about rent but not about other money matters. There was no recording of any future rent relief. 5. In cross-examination the appellant reiterated that the respondent told him he could stay in the property for the rest of his life. The appellant accepted that there was no reference in the emails between him and the respondent to having an entitlement over the property. He agreed that he had been living rent-free in the property from November 2011. The appellant gave evidence that he had a series of conversations with the respondent where she promised certain things about accommodation. 6. There is no transcript of submissions made by the parties to the primary judge as those commenced after 7pm. After a hearing which went late on the evening of 23 November 2018, the primary judge answered the separate question and made the following orders: "1. Upon noting the Summons filed on 19 November 2018 and the Cross Summons filed on 21 November 2018, ORDER, pursuant to rule 28.2 of the Uniform Civil Procedure Rules 2005 NSW, that the Court hear and determine, before the determination of any other question in these proceedings, the following question: Whether the defendant has any right, title or interest in the premises located at … Hunters Hill … other than any interest that may or may not subsist pursuant to the residential lease dated 20 June 1988. 2. Upon determination of that question, DECLARE that the defendant has no right, title or interest in the premises located at … Hunters Hill … other than any right of tenancy subsisting pursuant to the residential lease dated 20 June 1988. 3. ORDER that the defendant, no later than 26 November 2018, withdraw Caveat No. AN855390. 4. NOTE that, without admissions of any kind, the plaintiff (by her counsel) gives to the Court an undertaking that she will not, by herself, her servants or agents re-enter into possession of the premises located at … Hunters Hill … without first obtaining from the NSW Civil and Administrative Tribunal an order (under the Residential Tenancies Act 2010 NSW) authorising her to do so or the leave of the Court. 5. NOTE that the plaintiff's undertaking (recorded in paragraph [4] of these orders) is not intended to preclude the plaintiff from serving any notice, or taking any step, ancillary to the conduct of proceedings in the NSW Civil and Administrative Tribunal for the purpose of recovery of possession of the premises the subject of the undertaking. 6. RESERVE reasons for judgment for publication at a later date. 7. RESERVE all questions of costs relating to the hearing of the separate question determined by these orders. 8. ORDER that the proceedings be listed before Lindsay J on 29 November 2018 at 3:00pm for directions. 9. ORDER that these orders be entered forthwith." 1. On 26 November 2018, his Honour published his reasons for making those orders: Stamp v Whall [2018] NSWSC 1811. His Honour explained at the outset the urgency of the determination he had made: "[2] Urgency attached to a determination of the separate question ["whether the defendant has any right, title or interest in the premises located at … Hunters Hill … other than any interest that may or may not subsist pursuant to the residential lease dated 20 June 1988"] because it underpinned a caveat (recently lodged by the defendant upon the title to land owned by the plaintiff) which operated as an impediment to the conduct of an auction (long planned by the plaintiff, on notice to the defendant) for sale of the land scheduled for the morning of Saturday 24 November 2018." 1. After the primary judge gave the reasons for refusing the appellant's adjournment application set out at [60] above, his Honour made the following dispositive findings: "[70] In my assessment, the plaintiff is unlikely ever to have told the defendant that he could remain in occupation of the subject property for the rest of his life; but, equally, it is likely that she did say to him (some time before 2 April 2013) that he could remain in the property (implicitly, as a tenant) after her death. [71] She was too conscious of the property rights of her husband and herself to have intimated to the defendant that he could, or would, acquire a form of ownership in the property beyond a residential lease. Nevertheless, as she conceded in cross examination, she "may have" told the defendant that he could remain in the subject property after her death. [72] To put such a statement in perspective, one should remember that, at the time any such statement may have been made, the registered proprietor of the property was the plaintiff's husband, not the plaintiff herself. She did not become registered as proprietor of the property until after her husband's death. … [78] Although the defendant has held out against providing vacant possession of the subject property since December 2017 or thereabouts, he has done so in circumstances in which: (a) he has acquiesced in the plaintiff's understanding that she is entitled, as landlord, to recover possession of the property; and (b) as evidenced by his solicitors' correspondence, his principal objective appears to have been to extract a payment of money from the plaintiff, ostensibly as "compensation". [79] I do not accept that the defendant ever received from the plaintiff a promise, or any form of assurance falling short of a promise, that he would be granted, or would be treated as if granted, a life estate – or any estate or interest in the subject property more extensive than a tenant holding over under the residential lease dated 20 June 1988." 1. In orders made on 29 November 2018, Lindsay J noted that the property was sold pre-auction on the evening of 23 November 2018, presumably immediately after his Honour made orders resolving the separate question. On 29 November 2018, Lindsay J made the following orders: "1. NOTE that the plaintiff informs the Court that the subject property was sold by the plaintiff (on the evening of 23 November 2018 after the Court made its orders of that date), prior to auction, on terms that provide for the plaintiff to provide vacant possession of the subject property to the purchaser on completion of the contract of sale. 2. NOTE that the parties inform the Court that the defendant withdrew Caveat AN855390 on 26 November 2018. 3. NOTE that the defendant informs the Court that he is currently considering whether (subject to section 103 of the Supreme Court Act 1970 NSW) to appeal the orders made on 23 November 2018. 4. ORDER that the proceedings be listed before the Registrar on 13 February 2019 for directions. 5. ORDER that the defendant pay the plaintiff's costs of and incidental to determination of the separate question determined on 23 November 2018. 6. RESERVE to the defendant liberty to apply (by notice of motion at any final hearing of the balance of the proceedings) for an order that Order 5 of these orders be discharged or varied. 7. NOTE that, in the event that the defendant applies to the Court of Appeal for leave to appeal or files a notice of appeal from the orders made on 23 November 2018, the defendant reserves such, if any, entitlements he may have to apply to NCAT for an adjournment of the proceedings pending in NCAT (or to apply to the Supreme Court for an order that any proceedings disturbing his possession of the subject property be stayed) pending determination of any proceedings in the Court of Appeal. 8. ORDER that the proceedings be listed before the Registrar on 13 February 2018 at 9:00am for directions. 9. ORDER that these orders be entered forthwith." Grounds of Appeal 1. The draft amended notice of appeal contained three grounds of appeal: 1. "The primary judge erred (at [27]) by denying the [appellant] procedural fairness on 23 November 2018, in that his Honour denied the [appellant's] application for an adjournment in circumstances where the [appellant] was denied: 1. a proper opportunity to file and serve evidence including calling relevant witnesses; 2. time to prepare for the hearing; 3. issue subpoenas; 4. prepare pleadings; 5. understand any defence or case he was required to meet; 6. in all the circumstances and in the interests of justice [and] a fair trial. 1. The primary judge erred in failing to determine or give adequate and proper reasons in relation to the [appellant's] cause of action in contract. 2. The primary judge erred in ordering the separate determination question pursuant to r 28.2 of the Uniform Civil Procedure Rules 2005 (NSW)." Application to lead further evidence 1. On 22 May 2019, the appellant filed a notice of motion seeking leave under s 75A(7) of the Supreme Court Act 1970 (NSW) to adduce further evidence in this Court. The appellant sought to rely on six affidavits: 1. The affidavit of Dr Lindsay Stoddart dated 22 May 2019: 1. Dr Stoddart was the solicitor for the appellant. Dr Stoddart deposed that on 23 November 2018, the appellant was not ready to proceed with a trial of the issues before the primary judge. The appellant needed time to obtain evidence from further witnesses, issue subpoenas, prepare affidavit evidence, prepare for cross-examination and written submissions, potentially adduce expert evidence, and prepare a statement of claim. Dr Stoddart's affidavit names a series of potential witnesses, some of whom swore the affidavits identified below. 1. The affidavit of Ms Eva Tlach dated 22 May 2019: 1. Ms Tlach was a friend of the appellant. Ms Tlach deposed that, whilst she was present at the appellant's residence (which occurred about once every two weeks) she observed that the appellant often organised the respondent's meals, did some grocery shopping, picked up the respondent's pharmaceuticals, and cared for her dog. 1. The affidavit of Mr John Aylward dated 22 May 2019: 1. Mr Aylward was a friend of the appellant. Mr Aylward recalled having several conversations with the appellant between 2011 to 2013 in which the appellant said things to the effect that the respondent would allow him to stay at the subject property as long as he looked after the respondent. Mr Aylward also deposed that he had observed the appellant doing the respondent's shopping, tending the garden, cooking, caring for the dog, and organising maintenance tasks. 1. The affidavit of Mr John Keeney dated 22 May 2019: 1. Mr Keeney offered the appellant a job in 2011, which the appellant ultimately declined. The reason the appellant declined, Mr Keeney deposed, was that the appellant had "a serious and binding agreement which is almost a sort of moral agreement" to take care of the respondent. Mr Keeney deposed that the appellant also stated "I am in her will and have been promised a no charge tenancy in this nice but modest home for the duration of my life". 1. The affidavit of Ms Bernice Karen Aspden dated 22 May 2019: 1. Ms Aspden is a friend of the appellant. Ms Aspden deposed that the appellant told her about doing many tasks for the respondent including taking her to meetings with her accountant, collecting medication, making sure there was food in the house, and looking after the house and garden. 1. The affidavit of Mr Phillip Hutchinson dated 23 May 2019: 1. Mr Hutchinson is a friend of the appellant. Mr Hutchinson deposed that he frequently had social contact with the appellant, but that the appellant's caring duties for the respondent, since about 2011, had impeded the appellant's social life and seemed to take up a significant amount of time. After 2012, Mr Hutchinson visited the appellant's home and observed him walking the respondent's dog, doing groceries and shopping for the respondent, working in the garden, and arranging maintenance and repairs. 1. The respondent, by motion dated 1 May 2019, sought to rely on an affidavit in this Court as further evidence: 1. The affidavit of Mr Ronald S Czinner dated 1 May 2019: 1. Mr Czinner annexed an affidavit from the respondent's former accountant, Mr Lo Surdo, sworn on 12 December 2018. In that affidavit he said that at a meeting on 2 April 2013, the respondent and the appellant agreed that the respondent would pay the appellant $700 per week (being $350 in lieu of rent and $350 cash) for services and care of 20 hours per week. Mr Lo Surdo agreed with the appellant that a conversation to the effect stated by the appellant took place but denied that he stated "you [the appellant] have done more than a son would", or that he was asked by the appellant "can you also include the promise that [the respondent] made to me that I could stay living in [the subject property] after her death". Consideration of application to lead further evidence 1. I accept, as Basten JA points out, that evidence of the kind tendered by the appellant may not have attracted the operation of 75A(8) of the Supreme Court Act if led simply to demonstrate that the appellant was deprived of the possibility of a different outcome. It may be admitted on that basis. As both parties sought by motion to rely the affidavits as further evidence covered by s 75A(8), however, I will address the application on that basis. Except in the case of evidence concerning matters occurring after the trial, the appellant must show that there are special grounds for the Court to receive further evidence. 2. Although the categories are not closed, there are three conditions that must usually be satisfied in order for "special grounds" under s 75A(8) to be established: Lawrence v Gunner (No 3) [2016] NSWCA 18 at [24] (Gleeson JA); Akins v National Australia Bank (1994) 34 NSWLR 155 at 160 (Clarke JA, Sheller and Powell JJA agreeing); Tjiong v Tjiong [2012] NSWCA 201 at [166] (Meagher JA, Whealy and Barrett JJA agreeing): 1. the evidence could not have been obtained with reasonable diligence for use at the trial; 2. the evidence must be such that there must be a high degree of probability that there would be a different verdict; and 3. the evidence must be credible. 1. To the extent that the parties sought to lead evidence to have this Court address the substantive issue, that was an impermissible purpose. 2. As the High Court explained in Nobarani v Mariconte [2018] HCA 36; 92 ALJR 806 at [48], this Court should not attempt such a hypothetical assessment of the appellant's prospects in a new trial by, in effect, conducting a hypothetical trial based on untested new material. 3. To that extent, the untested further evidence should be rejected. The parties cannot, under the guise of further evidence, essentially litigate issues that were not litigated before the primary judge. To assess the new material would, in effect, be to conduct a hypothetical trial based on the untested new material. Appellant's submissions Ground 1 – denial of procedural fairness 1. The appellant submitted that the primary judge allowed only 24 hours for the appellant to file and serve all his evidence and gave less than 24 hours' notice that a hearing on the separate question would occur. In denying the application for an adjournment properly to prepare, the primary judge denied the appellant procedural fairness. 2. The appellant submitted that, when the primary judge elected to proceed by ordering a separate determination of the appellant's underlying interest in the property, the appellant opposed the order, seeking "more time". Once it was clear that the Court was going to determine the appellant's interest in the subject property on a final basis, a formal adjournment application was made. The primary judge denied the application for an adjournment. The primary judge also denied the request to place on the transcript the appellant's reasons for seeking the adjournment. 3. The appellant submitted that there was a denial of procedural fairness for several reasons: 1. the appellant was given just over 24 hours to file and serve all the evidence on which he intended to rely at the hearing. This was not enough time to prepare all the evidence in a case to determine final rights. The appellant had to locate every witness present when the respondent made the representations to the appellant, contact them to see whether they would give evidence, consider the evidence, and determine whether subpoenas needed to be issued; 2. it was unclear from the primary judge's orders on 20 November 2018 whether the matter was being set down for hearing on an interlocutory or final basis. At the time of those orders, the only application before the Court was the respondent's application for removal of the caveat under s 74MA of the Real Property Act 1900 (NSW). It was not until 22 November 2018 that the primary judge clarified that "final hearing" meant determination of whether the appellant had any interest in the subject property by way of a separate question; 3. there was "a more reasonable and practical solution open to the primary judge", which was to determine the respondent's application for removal of a caveat, which would have been an interlocutory hearing and the appellant would have been held only to the evidentiary standard of proving an arguable case, which would have been a fairer approach. The primary judge's rejection of the interlocutory option was based on an error of reasoning. His Honour's two reasons were that the undertaking as to damages was valueless, and that, even if the caveat had been removed, the appellant could still "frustrate" the auction or the NCAT proceedings. 1. The appellant submitted that the denial of the adjournment deprived him of the "possibility of a successful outcome". This was because one of the key issues in the case was proving that the respondent did make the alleged promise(s), and testimony from witnesses would have had a direct bearing on this question. With more time, those witnesses could have been properly interviewed and given full statements about matters material to the facts in issue. Ground 2 – inadequate reasons in respect of contract claim 1. The appellant put his case below on the following bases: equitable estoppel, contract and part performance. The appellant, in his closing submissions, argued that there was an agreement between the parties that, in return for the provision of the appellant's care and services, the appellant could remain living in the subject property rent-free after the death of the respondent. 2. The appellant submitted that while the primary judge provided reasons for denying the estoppel case, his Honour did not consider the contract case. There was no reference in the reasons to the elements of part performance, and there were no findings as to the terms of the contract between the parties. Ground 3 – error in ordering a separate question 1. The appellant submitted that the primary judge erred in ordering a separate question for determination under r 28.2 of the UCPR. That decision was in error given that there was a real chance that the same witnesses who were called at trial would be called at a later hearing in the proceedings, which might lead to the outcome that there were two findings of credibility of witnesses. Respondent's submissions 1. The respondent submitted that two issues arise: whether the primary judge denied the appellant procedural fairness in failing to grant an adjournment and proceeding with an urgent final hearing of the dispute between the parties, and whether there was no substantial miscarriage of justice as a fresh trial properly conducted could not lead to a different result. Ground 1 – denial of procedural fairness 1. The respondent submitted that the appellant does not point to any error of law or error of principle, or some irrelevant consideration taken into account by the primary judge in denying the request for an adjournment. The essential complaint by the appellant is that the primary judge reached the correct conclusion, having balanced all the considerations. 2. The respondent submitted that the appellant lodged a caveat, knowing that it would frustrate the auction and would lead to the necessity to determine the claim as to his alleged life estate interest. A caveator must not lodge a caveat without reasonable cause. The only proper inference is that the appellant and his solicitor had the material necessary to substantiate his alleged life estate at the time the caveat was lodged. 3. The respondent submitted that the appellant's submission that the primary judge gave less than 24 hours' notice of the hearing on a separate question determining the appellant's final interest was incorrect. The primary judge made it clear from Tuesday afternoon (20 November) that his preference was that a final hearing of the real issue in dispute would take place on 23 November. 4. The respondent submitted that the appellant's contention that "it is clear the only issue was the interlocutory question of the caveat" was wrong. The primary judge was squarely enquiring, on 22 November, whether all of the appellant's evidence on his cross-summons was on. The appellant answered, "Yes." 5. The respondent submitted that the primary judge's decision on the adjournment application was discretionary, and the grounds upon which such decisions may be challenged are confined to those grounds in House v The King (1936) 55 CLR 499; [1936] HCA 50. Particular caution must be exercised by appellate courts when asked to intervene in matters of practice or procedure: Newton v Ellis [2012] NSWCA 106 at [17] (Macfarlan JA, Beazley and Whealy JJA agreeing). Appellate courts will only rarely disturb decisions to grant or refuse adjournments: Blazevski v Judges of the District Court of New South Wales (1992) 29 ALD 197 at 200 (Kirby P). 6. The respondent submitted that what procedural fairness requires in any particular situation depends upon the "totality of the circumstances": Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326 at 341; [2015] HCA 40. 7. The respondent submitted that in the present case, the primary judge recognised, correctly, the real issue in dispute between the parties, recognised that there was real and irremediable prejudice to the respondent in any course that did not resolve finally the issue before the auction date, made orders and directions to ensure the real issue was elicited, gave notice to the parties that the Court would endeavour to determine the real issue before the auction date, gave notice to the appellant, and asked whether the appellant had filed all the evidence. 8. The respondent submitted that the primary judge was conscious of the prejudice to the respondent of the auction going off, given that it had been planned and consented to by the appellant for a month. The only practical way to alleviate that injustice, without doing injustice in turn to the appellant, was to determine the real issue in dispute (the life estate). The appellant had the time and opportunity to gather evidence from all the relevant witnesses since at least early October 2018 (when the appellant had begun receiving legal advice from his solicitors as to his interests in the subject property) and particularly in the period leading up to lodgement of the caveat on 13 November 2018. This was all the more so the case when the appellant had already consented to the auction by NCAT order and it was practically inevitable that the caveat would be challenged in imminent litigation. Thus the appellant's assertion of having only 24 hours to gather witnesses proceeds on a false premise. The appellant already should have had these matters in hand by 23 November 2018. 9. The respondent submitted that, even if there was a denial of procedural fairness, there was no substantial miscarriage of justice, as no more time to call witnesses or gather evidence could have produced a different result: Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54; Nobarani. 10. Given that the appellant's case turned on alleged oral representations or promises, there was no realistic prospect of other evidence that he could have called in aid. Thus, the respondent submitted, a fresh trial has no real possibility of producing a different result. Ground 2 – inadequate reasons in respect of contract claim 1. The respondent submitted that this ground fails on a fair characterisation of the primary judge's reasons. Having determined that there was a "want of a proper factual foundation" for the respondent making the alleged promises, there was nothing else with which his Honour should have dealt. Ground 3 – error in ordering a separate question 1. The respondent submitted that this ground fails on two bases: first, it was entirely appropriate in the primary judge's exercise of his discretion to isolate the real issue in dispute between the parties and order a separate question in respect of it, and secondly, the appellant's counsel (contrary to their submissions) never objected to the separate question. The drafting of the separate question was consented to and the appellant pressed his adjournment. The appellant did not submit that, the adjournment application having failed, the separate question was an inappropriate course to adopt. Consideration Ground 1 – denial of procedural fairness 1. Section 101(1)(a) of the Supreme Court Act provides the circumstances in which an appeal can be brought, including, as in this case, an appeal by way of rehearing from a judgment of the Equity Division. Section 75A(10) provides that the powers of the Court on appeal include that the "Court may make ... any order ... which the nature of the case requires". That discretion includes an order for a new trial. Section 101(1)(a) is subject to the UCPR. Rule 51.53(1) provides that: The Court must not order a new trial on any of the following grounds: (a) misdirection, non-direction or other error of law, (b) improper admission or rejection of evidence, (c) that the verdict of the jury below was not taken on a question that the trial judge was not asked to leave to the jury, (d) on any other ground, unless it appears to the Court that some substantial wrong or miscarriage has been thereby occasioned. 1. In Nobarani at [39] the High Court explained that the power under s 75A(10) of the Supreme Court Act to order a new trial arises where a denial of procedural fairness causes some substantial wrong or miscarriage. The denial of procedural fairness will cause a substantial wrong if it deprived the affected person of the possibility of a successful outcome. Unless the other party can show some reason for the exercise of discretion not to order a new trial, the power will be exercised to order a new trial. 2. In Nobarani, the appellant's case about the denial of procedural fairness was effectively encapsulated in the consequences of the failure to adjourn the proceedings. The High Court held at [40], contrary to the submissions of senior counsel for the respondent in that case, that this did not mean that the ground of appeal was concerned with a discretionary decision of the trial judge to refuse an adjournment. Rather, the denial of procedural fairness in Nobarani arose from the consequences, and effect on the appellant, of altering the hearing, at short notice, from a hearing of the caveat motion to a trial of the statement of claim. The appellant's adjournment applications were attempts to ameliorate those consequences. 3. In the present case the litigation between the appellant and the respondent only commenced on 19 November 2018. The existence of the asserted life estate was a matter of considerable significance for the appellant. The cross-summons asserting the existence of a life estate was only filed by the appellant on 21 November 2018. The separate question was only identified on 23 November 2018, the day the appellant's claim to a life estate was determined. The appellant was given only one business day to file all his evidence on this issue. 4. I acknowledge the many pressures operating on the duty judge in the Equity Division in dealing with a busy list. It must also be recognised that the appellant had known for almost a year that the respondent intended to sell the subject property and knew from 20 September 2018 that an auction for that purpose was planned for November 2018. It was also relevant that the appellant had effectively consented to the auction date in the NCAT proceedings and that the caveat lodged by the appellant was filed too late for a lapsing notice to be effective. These are matters highly relevant to the just determination of the dispute between the parties. 5. Because of the significance of the matters just mentioned, it is only because of three countervailing matters that I have concluded that there was a denial of procedural fairness in this case in the sense explained by the High Court in Nobarani at [40]. 6. First, the only relief ever sought by the respondent in her summons was an order removing the caveat. The declaratory relief ultimately granted by the primary judge was not based upon any relief sought by the respondent in her summons. The respondent sought unequivocally on 19, 20, 21 and 22 to proceed to hear her motion to remove the caveat. In the present case, the denial of procedural fairness arose from the consequences, and effect on the appellant, of altering the hearing, at short notice, from a hearing of the caveat motion (which was the only relief ever sought by the respondent) to a trial of the principal issue on the cross-summons. 7. Secondly, no responsible counsel could have agreed to go forward to have the existence of the appellant's life interest determined to finality without making proper enquiries about the available evidence. The appellant's further evidence admitted for limited purposes on this appeal demonstrates that there were legitimate avenues of enquiry relevant to this important issue which had not been explored. The appellant lost an opportunity to obtain the evidence necessary to make good his case. 8. Thirdly, on the afternoon of 22 November, although no separate question had yet been formulated, much less ordered, the appellant made an agreement with the respondent to have the substantive dispute reflected in the separate question determined in the week of 5 December - that is, in the week after the date fixed for the auction. The suggested urgency of having the matter determined to finality on 23 November was not something ever advanced by the respondent below save perhaps opportunistically on the evening of 23 November after the primary judge had already rejected the first adjournment application made by the appellant. That suggestion of urgency in determining the substantive issue before the auction was first made by the primary judge and only adopted, albeit faintly, by the respondent for the first time on the evening of 23 November. 9. Despite the dilatory conduct of the appellant in seeking to establish his rights and in lodging a late caveat, these three matters lead me to conclude that the appellant was denied procedural fairness arising from the consequences, and effect on the appellant, of altering the hearing, at short notice, from a hearing of the caveat motion to a trial of the substantive issue of the existence of the life estate. The appellant's adjournment application was an attempt to ameliorate those consequences. 10. As to the respondent's submission that despite any denial of procedural fairness no other outcome was possible, it is correct that the case presented by the respondent to the primary judge appears to be a strong one. But the finding of the primary judge was not inevitable. The denial of procedural fairness to the appellant amounted to a "substantial wrong or miscarriage" in the sense that the appellant was denied the possibility of a successful outcome. I reject the submission that a properly conducted trial could not have made a difference to the result. As the High Court explained in Nobarani, it will be rare that such a submission succeeds. 11. In this case, the submission cannot be accepted because it suffers from an erroneous basic assumption. That assumption is that this Court should attempt such an assessment by, in effect, conducting a hypothetical trial based on the untested new material. It would be quite wrong for this Court to conduct such a hypothetical trial. 12. Accepting that particular caution must be exercised by appellate courts when asked to intervene in matters of this kind, this is a matter where leave should be granted and the appeal allowed. Ground 2 – inadequate reasons in respect of contract claim 1. It is strictly unnecessary to address this ground. As it was fully argued however, I would conclude that when his Honour determined that there was a "want of a proper factual foundation" for the respondent making the alleged promises, there was nothing else with which his Honour could or should have dealt. 2. His Honour decided the contract case, stating at [79]: "I do not accept that the defendant ever received from the plaintiff a promise, or any form of assurance falling short of a promise, that he would be granted, or would be treated as if granted, a life estate – or any estate or interest in the subject property more extensive than a tenant holding over under the residential lease dated 20 June 1988". The reasons given by his Honour were not inadequate. If this were the only ground of appeal I would refuse leave or if leave were granted dismiss the appeal. Ground 3 – error in ordering a separate question 1. Given my conclusion about ground 1, it is also unnecessary to address this ground of appeal. The appellant's counsel participated in the drafting of the separate question and did not object to its form. 2. The appellant did not demonstrate any error in the exercise of judicial discretion to order a separate question which was plainly an attempt to isolate the real issue in dispute between the parties. I would reject ground 3. 3. Given, however, that the property has now been sold to a third party and the appellant no longer resides there it is nonetheless appropriate to set aside order 1 made by Lindsay J on 23 November 2018 for the reasons given by Basten JA. Conclusion and proposed orders 1. For the foregoing reasons I would grant leave to appeal and uphold ground 1 of the amended draft notice of appeal. I would reject grounds 2 and 3. The matter must be remitted to the Equity Division. The order for remittal should be expressly limited to the remaining issues raised by the appellant's cross-summons. Because the property has been sold and a title conveyed free of the appellant's claimed interest, the interim relief is no longer relevant. The final relief sought, being (i) a declaration that he has a life estate in the property and (ii) injunctive relief preventing the respondent interfering with his possession, are no longer open. It is desirable in these circumstances to spell out the limited issues to be determined on remitter as being: 1. 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; 2. the appellant's claim for equitable compensation with respect to such an interest; and 3. the appellant's claim for payment for services performed for the respondent which were unremunerated. 1. The claim for relief under the Property (Relationships) Act 1984 (NSW) is no longer available. Questions of interest and costs will be consequential upon the orders made in the Equity Division. 2. As the appellant has been successful in this Court he is entitled to his costs of the appeal. 3. The costs of the hearing before the primary judge are in a different category. By reason of the appellant's conduct which I have described at [111], the primary judge was required, if he could, to address the question of the removal of the caveat on an urgent basis on the evening of 23 November. I am satisfied that the issue of setting aside the caveat required the parties to lead the same evidence as was actually led on the hearing on the evening of 23 November. That is, the costs incurred by each party would necessarily have been incurred in a hearing limited to the question of the removal of the caveat. The costs order made by the primary judge in favour of the respondent should thus not be disturbed. 4. The orders I propose are: 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: 1. 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; 2. the appellant's claim for equitable compensation with respect to such an interest; and 3. the appellant's claim for payment for services performed for the respondent which were unremunerated. 1. Respondent to pay the appellant's costs of the appeal. ********** Endnotes 1. See Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326; [2015] HCA 40 at [58] (Gageler and Gordon JJ). 2. (1986) 161 CLR 141 at 147; [1986] HCA 54. 3. Stead at 145-146. 4. It was the possibility of obtaining a successful outcome, not the probability, which was in issue. 5. See, eg, Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 92 ALJR 780. 6. Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 at [59] (Gaudron and Gummow JJ); Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326; [2015] HCA 40 at [55], [56] (Gageler and Gordon JJ). 7. [2018] HCA 36; 92 ALJR 806. 8. Plymouth Brethren (Exclusive Brethren) Christian Church v The Age Company Ltd; Plymouth Brethren (Exclusive Brethren) Christian Church v Fairfax Media Publications Pty Ltd (2018) 97 NSWLR 739; [2018] NSWCA 95 at [120]-[124]; The Owners Strata Plan No 91322 v Trustees of the Roman Catholic Church for the Archdiocese of Sydney [2019] NSWCA 89 at [4]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 July 2019