Whall v Stamp [2019] NSWCA 163

Whall v Stamp [2019] NSWCA 163

Procedural fairness was denied to the appellant when, on short notice, the hearing was altered from the caveat motion to a final determination as to his alleged life estate, and he was given only one day to prepare evidence. This amounted to a substantial wrong under the Nobarani principle. As a result, orders made by the primary judge were set aside, and the matter remitted for determination of the appellant's claims for damages in lieu of specific performance, equitable compensation, and payment for services.

Jurisdiction
Australia
Judgment Date
08 July 2019
Procedural Posture
Civil / Appeal (leave Granted), Remitter to Equity Division
Outcome
Leave to appeal granted; appeal allowed; partial remitter; costs order in favour of appellant for appeal.
Legal Topics
['procedural Fairness' 'caveat Removal' 'life Estate' 'damages in Lieu of Specific Performance' 'equitable Compensation' 'payment for Services' 'admission of Further Evidence on Appeal']
['equity' 'civil Procedure' 'property Law'] ['procedural Fairness' 'caveat Removal' 'life Estate' 'damages in Lieu of Specific Performance' 'equitable Compensation' 'payment for Services' 'admission of Further Evidence on Appeal']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Civil / Appeal (leave Granted), Remitter to Equity Division

Legal Issues

  1. 1 ['Whether the appellant was denied procedural fairness due to the short timeframe and denial of adjournment' 'Whether the primary judge adequately considered the contract claim' 'Whether it was an error to order determination of a separate question under r 28.2 UCPR']

Ratio Decidendi

Procedural fairness was denied to the appellant when, on short notice, the hearing was altered from the caveat motion to a final determination as to his alleged life estate, and he was given only one day to prepare evidence. This amounted to a substantial wrong under the Nobarani principle. As a result, orders made by the primary judge were set aside, and the matter remitted for determination of the appellant's claims for damages in lieu of specific performance, equitable compensation, and payment for services.

Court Disposition

Leave to appeal granted; appeal allowed; partial remitter; costs order in favour of appellant for appeal.

Orders

  • ['Leave to appeal granted.' "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." "Dismiss the respondent's motion to call further evidence dated 1 May 2019."...