Horn v GA & RG Horn Pty Ltd [2022] NSWSC 1519

ESTOPPEL — Estoppel by encouragement — estoppel by acquiescence — Farming properties held through a company — Company incorporated and initial management shares held by plaintiff’s father and paternal grandfather – Plaintiff claims his father gave encouragement for plaintiff and his wife to move onto one of the properties and subsequently also farm the other property and made promises to leave the shares in the company (or the properties) to the plaintiff upon his father’s death — Father makes various Wills leaving shares to plaintiff but 5 days prior to his death makes a Will leaving his estate to his wife (plaintiff’s mother) — Plaintiff claims father estopped from doing so and shares held on trust for plaintiff — Mother claims plaintiff did not abide by terms of promises by failing to make payments to father and failing to continue farms as “working farms” — Estoppel case made out.

ESTOPPEL — Consideration of alleged conditionality of promises — Whether promises of testamentary inheritance of shares conditional upon plaintiff(s) making payments for benefit of the deceased albeit payments made to corporate entity — Whether promises conditional upon plaintiff(s) continuing to work farms for the remainder of deceased’s life — Effect of deceased’s post promise intervention suggesting alternative use of property for members of plaintiffs’ family.

ESTOPPEL — Estoppel by encouragement — estoppel by acquiescence — Requirements — deceased aware of intended reliance — Life-changing decisions with practically irreversible consequences of a profoundly personal nature beyond the measure of money — Application of principle in Donis v Donis (2017) 19 VR 577; [2007] VSCA 89 — Substantial detrimental reliance established.

TRUSTS — Time from which a constructive trust arises — Time of the conduct which gives rise to the trust occurred is generally when a plaintiff acts in reliance on the promise or expectation such that it later becomes unconscionable for the promisor to resile.

EQUITY — Equitable remedies — Defences to specific performance — Unclean hands — consideration of onus of proof — Consideration of operation of maxim used as a defence against a party seeking equitable relief based on estoppel.

PAYMENT — Consideration of payment obligation being waived or not pressed

LOANS — Onus of proof — Absence of evidence bearing directly on gifting of monies — Whether loan can be inferred from book entries without movement of money — Requirement for underlying agreement — Consideration of Manzi v Smith (1975) 132 CLR 671; [1975] HCA 35 — Whether inference of agreement open — Whether within the scope of authority of accountant to characterise payment as a loan and prepare company financial statements and tax returns accordingly.

GIFTS — Absence of evidence bearing directly on gifting of monies — Assessment of evidence — Gift established — In any event arguably a presumption of advancement arises.

PRACTICE — Pleadings — Pleading of estoppel claims — Test of pleading is not greatest fidelity to facts but materiality of facts — Pleading events or contingencies need not be stated if they are not alleged to affect a plaintiff’s right or title or claim to relief.

CIVIL PROCEDURE — Subpoenas — Privacy and access issues — If parties have concerns regarding privacy but do not have technical capacity to address that they should actively seek the assistance of their legal representatives or other appropriate professionals who can assist them to resolve production issues in a way that fairly enables production of relevant material but otherwise preserves the integrity of matters that are properly the subject of privacy concerns.

EVIDENCE — Photographic evidence — Admissibility — No requirement to prove who took the photograph — Photograph admissible where a witness is able to state the photograph accurately depicts what is shown of the relevant scene, item or facts — Nonetheless distortion of appearance may be ground to make a photograph inadmissible or use unfair.

EVIDENCE — Self-incrimination — Informing witnesses of rights — Obligation under s 132 Evidence Act 1995 (NSW) regarding objections pursuant to s 132 Evidence Act to answering questions.

DECLARATORY RELIEF — Conditioning relief on plaintiffs not being permitted to enforce claim against the estate in respect of a “director’s loan” recorded in company accounts — Further nunc pro tunc declaration sought — Declined on the facts.

TAXES AND DUTIES — NSW company shares — whether dutiable property — Marketable securities not dutiable property — Court otherwise will not pre-empt what duty or tax liability may flow from findings regarding loan and gift transactions.

ANCILLARY RELIEF — Order sought empowering Registrar to execute transfer documents — Court may condition orders with an “alternative execution” provision if circumstances demonstrate probable futility of signing request — Probable futility not demonstrated.

ORDERS — Application for referral of matters to Regulator — Basis on which referral is made discussed — Whether appropriate in the circumstances — Papers not referred.

Dr Christos Mantziaris successfully represented the Plaintiffs.

Reasons for the decision can be found here.

Northside Veterinary Property Pty Ltd v Dalmacija Sydney Croatian Club Ltd [2022] nswsc 589

CORPORATIONS - corporate contracting - agency and authority - authority of directors to bind company to contract for the sale of land - contract executed in accordance with s 127(1)(a) of the Corporations Act 2001 (Cth) - where company claims that directors executing contract lacked actual or ostensible authority to bind company - whether plaintiff entitled to make assumptions in s 129 of the Corporations Act 2001 (Cth) - whether company precluded from asserting that assumptions are incorrect - not established that plaintiff actually knew or actually suspected that the company’s constitution had not been compiled with, or that directors were not properly preforming their duties to the company - held that company precluded by s 128(1) of the Corporations Act 2001 (Cth) from asserting non-compliance with its constitution or improper conduct on part of its directors - held that binding contract for sale came into existence

EQUITY - specific performance - contract for the sale of land - discretionary defences to specific performance - where defendant claims lapse of time and protracted negotiations should defeat plaintiff’s claim for specific performance - where defendant claims plaintiff was tricky in procuring contract - where defendant claims specific performance would occasion great hardship upon it - where defendant claims that damages would be an adequate remedy - held that no bar to decree of specific performance had been demonstrated - held appropriate to order specific performance

Robert Angyal SC appeared for the Plaintiff.

Reasons for the decision can be found here.

Wang v Cai [2021] NSWSC 1162

CIVIL PROCEDURE — Discovery — Practice Note SC Eq 11.

CIVIL PROCEDURE — Discovery — Whether necessary for resolution of real issues in dispute — Preliminary discovery.

CIVIL PROCEDURE — Interrogatories — Application for — Necessity.

CORPORATIONS — Management and administration — Application to inspect books.

EQUITY — Trusts and trustees — Beneficiaries — Access to trust documents — Where claimed by reference to general administration suit — Whether trustee obliged to provide information or an account of trust dealings.

Jennifer Mee represented the second and fifth defendants.

Reasons for this decision can be found here.

Alexakis v Wan [2021] NSWSC 367

LAND LAW – contracts for the sale of land – deposit payable in two instalments – second instalment payable “on the 4th month after the contract date” – contract dated 4 April 2019 – whether second instalment required to be paid by 4 August 2019, or by 31 August 2019 – held that payment was required by 4 August 2019 – vendors held to be entitled to terminate contract on 5 August 2019 – Conveyancing Act 1919 (NSW) s 181(1)(d) definition of “month” as “calendar month” – Interpretation Act 1987 (NSW) s 21 definition of “calendar month”.

EQUITY – equitable remedies – relief in respect of exercise of legal rights – exercise of right to terminate contract for sale of land – breach giving rise to right of termination brought about by purchaser’s mistake – mistake not caused or contributed to by conduct of vendors – serious breach in failing to pay part of deposit within time agreed to be essential – no substantial loss or prejudice to vendors if contract ordered to be performed – not unconscientious of vendors to rely upon their termination – equitable relief declined – forfeiture of deposit of 5% of the price not unjust or inequitable in the circumstances – no order made for return of deposit under s 55(2A) of Conveyancing Act 1919 (NSW).

David Rayment represented the Defendants in the matter.

Reasons for the decision can be found here.

Trentelman v The Owners - Strata Plan 76700; The Owners - Strata Plan 76700 v Trentelman [2021] NSWSC 155

CONTRACT – formation and validity – proposal by owner of development lots to convert lots into non-strata blocks and build townhouses of specified height – cooperation of strata corporation required – development lot owner promised proposal would result in continuing access for strata owners to swimming pool on her land – resolution passed at general meeting – no contractual effect

ESTOPPEL – proprietary estoppel – encouragement – detrimental reliance – whether lot owner’s promise made to strata corporation – whether reliance by corporation – corporation entitled to easement over pool land

EQUITY – rectification – mistake – strata plan of subdivision included notation that pool structures formed part of common property – notation failed to include three-dimensional space around pool structures – inclusion of notation deliberate and mistake established but intended form of plan could not be determined – rectification refused

Elisabeth Peden and Jennifer Mee represented the First Defendant and Plaintiff respectively in proceedings.

Reasons for this decision can be found here.

Yu v Yu [2020] NSWSC 1904

EQUITY – equitable remedies – vitiating factors – common mistake – discussion of the existence and scope of jurisdiction to set aside contracts for common mistake in equity – whether parties to an agreement were operating under a common misapprehension that was fundamental to the agreement – no fundamental misapprehension.

JUDGMENTS AND ORDERS – res judicata and cause of action estoppel – no issue of principle.

CONTRACTS – formation – illegality – no issue of principle.

CONTRACTS – terms – implied terms – no issue of principle.

CONTRACTS – construction – no issue of principle.

Dr. Christos Mantziaris represented the Second Defendant.

Reasons for the decision can be found here.

MIR Holdings Pty Ltd & Anor v Marina Square Retail Pty Ltd [2020] NSWSC 1418

EQUITY – equitable remedies – relief against forfeiture – third party rights – where new lessees are in possession of the premises.

EQUITY – equitable remedies – relief against forfeiture – Retail and Other Commercial Leases (COVID-19) 2020 Regulation – whether breach during the prescribed period.

Robert Angyal SC represented the Defendant.

The reasons for the decision can be found here.

Mudgee Dolomite & Lime Ltd v Robert Francis Murdoch; In the matter of Mudgee Dolomite & Lime Pty Ltd [2020] NSWSC 1510

CORPORATIONS — Directors and officers — Fiduciary duties — Conflict of duty and interest — Conflict of duty and duty — Diversion of corporate opportunity— Whether corporate opportunity within scope of company’s activities — Where other companies associated with directors took up profitable work — Where diversion occurred after shareholders intended to split up company — Split up not implemented at time of diversion — Directors’ duties where intention or understanding to split up company in future but no present implementation.

CORPORATIONS — Directors and officers — Fiduciary duties — Fully informed consent — Whether sufficient disclosure to constitute fully informed consent.

CORPORATIONS — Directors and officers — Liability for breach of directors’ duties — Knowing involvement — Where companies associated with directors were alter egos of the directors.

CORPORATIONS — Winding up — Grounds for winding up — Just and equitable ground — Relationship between shareholders and directors irretrievably broken down — One of two directors unwilling to attend board meetings or sign financial statements — Whether less extreme remedy available — Evidence that shareholder cannot afford to buy out the other shareholder’s shares — Oppression.

EQUITY — Equitable remedies — Account of profits — Whether allowance made for Defendants’ skill and effort — Discretionary nature of remedy — Where conduct involved lack of honesty.

John Kelly SC, Howard Insall SC, and Dr. Christos Mantziaris represented Robert Murdoch interests.

Reasons for the decision can be found here.

JABBCORP (NSW) PTY LIMITED V STRATHFIELD GOLF CLUB [2020] NSWSC 1317

CONTRACT – Construction and interpretation – Consideration of the principles of contract interpretation – Whether application of principles of contractual interpretation modified by entire agreement clause – Relevance of surrounding circumstances.

David Rayment represented the Defendant.

Reasons for the decision can be found here.

Ozmen Entertainment Pty Ltd v Neptune Hospitality Pty Ltd [2019] FCA 721

ADMIRALTY – demise charter – construction – nature of demise charter – warranty that vessel would be classed and surveyed to carry 800 passengers – where vessel had not been classed or surveyed at time of entry into charterparty – whether survey for maximum of 450 passengers breach of warranty

CONTRACTS – notice to remedy breach –where notice conveys clear intention to terminate agreement if breaches of continuing obligations not remedied within specified time – where impossible to remedy past breaches – whether possible for party to remedy past breaches by acting “to put things right for the future”

CONTRACTS – termination under contract or at common law – where multiple breaches of obligations and duties under joint venture agreement – where one party required to provide fortnightly financial reports and information to other – duties of trust and good faith and of making decisions jointly – duty not to unilaterally incur debts – duty to comply with taxation obligations – conditions, warranties and innominate terms – whether unremedied breach of innominate terms sufficiently serious to justify termination – whether multiple breaches by party evinced intention not to be bound

EQUITY – joint venture – fiduciary duty – where party obliged to obtain survey and classification of vessel to carry 800 passengers informs other party that surveyor will only issue for lesser number and parties should do work later to bring vessel to standard for 800 passengers – where consequence is other party would lose guaranteed net profit entitlement under joint venture agreement – whether one party had fiduciary duty to inform other of potential loss of guarantee in advising course of action – whether conflict between interests of joint venturers – whether duty to inform of conflict of interests –whether party to joint venture agreement deemed to know its provisions

Tim Castle with Ms Ermelinda Kovacs represented the Applicant.

Reasons for the decision can be found here.

Royal Botanic Gardens and Domain Trust v The Attorney General of New South Wales [2018] NSWSC 1666 (31 October 2018)

EQUITY — charitable trusts — Validity and practicability — Administrative scheme ordered for a scholarship bequest for the purposes of the Mt Tomah Garden administered by the Royal Botanic Garden and Domain Trust.

Dr Christos Mantziaris represented the Attorney General (NSW).

Reasons for the decision can be found here. 

Ubiparipovic & Ors v Vucicevic & Ors [2018] NSWSC 1583 (19 October 2018)

EQUITY — charitable trusts – application for approval of the settlement of charitable trust proceedings – Separation of assets of the St George Serbian Orthodox Church and School Cabramatta (SGSOCC) under two cy–près schemes effecting a division of assets between two different church organisations. 

Dr Christos Mantziaris represented the representatives of the SGSOCC (Plaintiffs).

Reasons for the decision can be found here. 

Lever v Attorney General of NSW [2018] NSWSC 838 (29 May 2018)

EQUITY – Charitable trusts — private international law — validity of testamentary gift to a foreign executor applying the gift to a charitable purpose in a foreign jurisdiction — how the foreign charitable purpose is to be assessed — Hague Convention — evidence of foreign law.   

Dr Christos Mantziaris represented the Attorney General (NSW).

Reasons for the decision can be found here. 

Wright v Stevens [2018] NSWSC 548 (3 May 2018)

TRUSTS and TRUSTEES - Trust created by Will - Whether private discretionary trust or charitable trust - Powers, duties of trustee of Trust - Potential object of exercise of discretionary power of appointment - Whether has a right to seek information, seek inspection of documents in the possession of the Trustee and accounts - Approach the Court should take to application by a potential object of exercise of discretionary power for an order directing trustee to disclose information and permit inspection of documents relating to the Trust – Whether duty to account to potential object of exercise of discretionary power of appointment - Trustee resisted claim for information, inspection of documents and accounts.

Dr Christos Mantziaris represented the Attorney General (NSW).

Reasons for the decision can be found here. 

Willoughby City Council v Attorney General of NSW [2016] NSWSC 972

EQUITY – CHARITIES – Trusts and trustee – Where Plaintiff trustee is a local council – Where council held land on trust for the purposes of a public park, public reserve or public recreation area – Land compulsorily acquired with result that the charitable purposes for which the land was held will no longer be fulfilled – Charitable purposes – Other purposes beneficial to public – Where original purposes have ceased to provide a suitable and effective method of using the trust property, having regard to the spirit of the trust – Cy-près scheme proposed taking into consideration practicalities – Approved by Attorney General in amended form – Cy-près scheme as proposed, with amendments, ordered.

Dr Mantziaris appeared for the Attorney General (NSW).

Great Investments Ltd v Warner [2016] FCAFC 85

CORPORATIONS – power of attorney – construction of general power of attorney – whether exclusion of liability for conflict of interest or direct or personal interest authorises transfer of company assets for director’s private purposes – whether recipients can rely upon assumptions in ss 128 and 129 of the Corporations Act 2001 (Cth) 

EQUITY – unjust enrichment – constructive trust – receipt of company assets without authority – irrelevance of recipient’s knowledge to prima facie liability to make restitution

EQUITY – defence of bona fide purchase – whether defence can operate where there is no receipt by third party - meaning of “value” – degree of notice required – whether respondents are purchasers for value – whether respondents have notice

CORPORATIONS – uncommercial transactions under s 588FB of the Corporations Act 2001 (Cth) - whether transfers pursuant to power of attorney were uncommercial transactions – whether, because company had ‘no choice’, the transfers were not uncommercial transactions – whether orders would be appropriate under s 588FF of Corporations Act

Comgroup Supplies Pty Ltd v Products for Industry Pty Ltd & Anor [2016] QCA 88

EQUITY – TRUSTS AND TRUSTEES – IMPLIED TRUSTS – CONSTRUCTIVE TRUSTS – KNOWING RECEIPT – where an employee of the applicant induced the first respondent, through its managing director, the second respondent, to invoice the applicant for work done by a company owned and controlled by the employee – where in fact no such work had been performed by the employee’s company and the invoices were a fabrication – where the applicant submitted that the issue of the fictitious invoices by the respondents constituted knowing assistance of the employee – where the applicant submitted that the respondents knowingly received the proceeds of payment of the invoices – whether the respondents’ held the kind of knowledge necessary to be found accessorily liable for the employee’s breach of fiduciary duty.

EQUITY – GENERAL PRINCIPLES – MISTAKE RECOVERY OF MONEY PAID OR EXPENDED – MONEY PAID BY MISTAKE – MISTAKE OF FACT – where the applicant paid money to the first respondent under an operative mistake of fact – where the respondents entered into the arrangement with the applicant’s employee in good faith – where the respondents would be placed in a worse position if ordered to make restitution of payments that it had passed on to the employee’s company than if it had not received payments from the applicant at all – whether the respondents could rely on a change of position defence to a claim by the applicant for restitution.

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – FROM DISTRICT COURT – BY LEAVE OF COURT – where the proposed appeal does not raise any significant questions of law but rather the application of well-established principles of law to the facts – whether, in the circumstances, leave to appeal should be granted.

Tim Castle and James Green represented the Applicant.

Reasons for the judgement can be found here.

Comgroup Supplies Pty Ltd v Products for Industry Pty Ltd & Anor [2016] QCA 88

EQUITY – TRUSTS AND TRUSTEES – IMPLIED TRUSTS – CONSTRUCTIVE TRUSTS – KNOWING RECEIPT – where an employee of the applicant induced the first respondent, through its managing director, the second respondent, to invoice the applicant for work done by a company owned and controlled by the employee – where in fact no such work had been performed by the employee’s company and the invoices were a fabrication – where the applicant submitted that the issue of the fictitious invoices by the respondents constituted knowing assistance of the employee – where the applicant submitted that the respondents knowingly received the proceeds of payment of the invoices – whether the respondents’ held the kind of knowledge necessary to be found accessorily liable for the employee’s breach of fiduciary duty.

EQUITY – GENERAL PRINCIPLES – MISTAKE RECOVERY OF MONEY PAID OR EXPENDED – MONEY PAID BY MISTAKE – MISTAKE OF FACT – where the applicant paid money to the first respondent under an operative mistake of fact – where the respondents entered into the arrangement with the applicant’s employee in good faith – where the respondents would be placed in a worse position if ordered to make restitution of payments that it had passed on to the employee’s company than if it had not received payments from the applicant at all – whether the respondents could rely on a change of position defence to a claim by the applicant for restitution.

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – FROM DISTRICT COURT – BY LEAVE OF COURT – where the proposed appeal does not raise any significant questions of law but rather the application of well-established principles of law to the facts – whether, in the circumstances, leave to appeal should be granted.

Tim Castle appeared for the applicant.

Roads and Maritime Services v Rockdale City Council & Ors [2015] NSWSC 1844

EQUITY – trusts and trustees – purpose trusts – where trustee was a local council – where council held land or parts of it on trust for a county road and other purposes – where condition of trusts was that council transfer land or parts of it required for a county road to named body when requested at no cost – where Plaintiff sought transfer of the parcels of land that it ‘required’ for the construction of a road – whether council required to transfer only that part of land that was previously ‘reserved’ or that part of land which was now ‘required’ to the Plaintiff under the terms of the trusts – whether use for a road encompassed ancillary requirements for the construction of the road.

LOCAL GOVERNMENT – regulation and administration – ordinances, regulations, by-laws and local laws – where council held parcels of land on trust for particular purposes – whether obligations arising under the trusts were affected by Local Government Act 1993 (NSW) – application of County of Cumberland Planning Scheme Ordinance.

CHARITIES – charitable purposes – other purposes beneficial to public – where council held land on trust for road purposes and for the purposes of a public park, reserve or recreation area – whether trusts created for purposes of roads and road works are charitable trusts – whether trusts created for purposes of parks and public reserves are charitable trusts – whether trust purposes impractical or impossible – whether to order cy-pres scheme.

WORDS AND PHRASES – ‘required’ – ‘reserved’ – ‘road purposes’ – ‘purposes of a road’.

Dr Christos Mantziaris and Steven Cominos appeared for RMS.

Lambert Leasing Inc. v QBE Insurance Ltd (No 2) [2015] NSWSC 1196

EQUITY - Aviation insurance - The effect of a pay to be paid clause - Costs orders - Indemnity costs - Calderbank offers - Reasonable refusal - Offer of compromise under the Uniform Civil Procedure Rules 2005 - Walk away offer - Whether genuine compromise.

Dr Chris Ward appeared for the plaintiffs.