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[1995] NSWCA 430
Court of Appeal (NSW)
1995-08-09
Gleeson CJ, Kirby P, Priestley JA, Windeyer J
Original judgment source is linked above.
SIMMONS v_ SIMMONS by her Tutor THE PROTECTIVE COMMISSIONER OF NEW SOUTH WALES
Gleeson CJ, Kirby P and Priestley JA The court made orders in this appeal on 14 November 1994. The reasons then published contain the facts known to the court in the course of the appeal. The substance of the court's decision was that the appellant was entitled to obtain the registration of a transfer of certain land from his mother to his mother and himself as joint tenants. O3(a) and O3(b) were made to implement that decision.
Unknown to the court was the fact that after Windeyer J had decided the case at first instance, and before the hearing of the appeal from his decision began, contracts for the sale of the land had been exchanged (24 December 1993), and the sale had been completed (28 June 1994) after the argument but before judgment in the appeal. Windeyer J had ordered, on 1 February 1994 that the Protective Commissioner as manager of the mother's estate should be restrained from dealing with the net proceeds of sale until determination of the appeal to this court.
Upon these matters being made known to the court, the court indicated it would make supplementary orders so that effect could be given to the substance of its judgment in the changed circumstances of the case.
In lieu of sub para(a) and para(b) of para3 of the declaration and orders made on 14 November 1994 the court (a) declares that the net proceeds of the sale of "Goonoo" are held by the respondent in trust for Paul Ernest Simmons and Agnes Mary Simmons as joint tenants, and (b) orders that the Protective Commissioner deal with the said net proceeds accordingly. It is also necessary to add to para3 the following:
(f) the costs of and incidental to the making of the further declaration and orders varying those made on 14 November 1994 are to be part of the appellant's costs of the appeal.