Galaxidis v Galaxidis (No. 2) [2004] NSWCA 387

Galaxidis v Galaxidis (No. 2) [2004] NSWCA 387

The application to re-open the appeal was rejected because the possible finding of a licence of indefinite duration in one third of the Flinders Street property was apparent from the issues and was the best fallback position available to the first respondent after rejection of the primary judge's finding of an immediate proprietary interest in the whole property. Because both sides partly succeeded, each party should bear their or his own appeal and cross-appeal costs. Security for the compensation payable to John should be confined to the Flinders Street property, as that was the minimum necessary to do justice between the parties.

Jurisdiction
Australia
Judgment Date
01 November 2004
Procedural Posture
Appeal and Cross Appeal / Orders After Substantive Appeal Judgment; Application to Re Open Appeal, Costs and Security Determined on Papers
Outcome
Appeal allowed in part; cross-appeal dismissed; application to re-open appeal rejected; declarations and orders of Austin J set aside; compensation and security orders made.
Legal Topics
['proprietary Estoppel' 'licence of Indefinite Duration' 'compensation for Interest in Land' 'application to Re Open Appeal' 'security by Charge Over Land' 'appeal Costs']
['equity' 'property Law' 'civil Procedure' 'costs'] ['proprietary Estoppel' 'licence of Indefinite Duration' 'compensation for Interest in Land' 'application to Re Open Appeal' 'security by Charge Over Land' 'appeal Costs']

Case Brief

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Procedural Posture

Appeal and Cross Appeal / Orders After Substantive Appeal Judgment; Application to Re Open Appeal, Costs and Security Determined on Papers

Legal Issues

  1. 1 ["Whether the first respondent's application for the Court to withdraw its judgment and re-open the appeal should be allowed." 'What costs order should be made where the appellants and first respondent were each partially successful on the appeal.' 'Whether security for the compensation payable to the first respondent should be confined to the Flinders Street property or extend to four other properties.' "What final orders should be made to give effect to the Court's substantive judgment."]

Ratio Decidendi

The application to re-open the appeal was rejected because the possible finding of a licence of indefinite duration in one third of the Flinders Street property was apparent from the issues and was the best fallback position available to the first respondent after rejection of the primary judge's finding of an immediate proprietary interest in the whole property. Because both sides partly succeeded, each party should bear their or his own appeal and cross-appeal costs. Security for the compensation payable to John should be confined to the Flinders Street property, as that was the minimum necessary to do justice between the parties.

Court Disposition

Appeal allowed in part; cross-appeal dismissed; application to re-open appeal rejected; declarations and orders of Austin J set aside; compensation and security orders made.

Orders

  • ['Appeal allowed in part.' 'Declarations and orders made by Austin J on 20 December 2002 set aside.' 'The first and second appellants pay to the first respondent compensation in the sum of $145,156.05 together with interest thereon from 1 August 2004 to the date of payment at the rate prescribed by Schedule J to the...