Anjoul v Anjoul [2021] NSWSC 592

BUILDING AND CONSTRUCTION — Home Building Act 1989 (NSW) — Residential building work — Consequences of failure to obtain contractor licence and insurance — Where the owner-builder defendant pleaded that the Act barred the plaintiff from being entitled to recover any money under a deed in respect of the residential building works because he did not have a contractor licence or insurance as required by the Act — Where the Court found that the Act did not prohibit the plaintiff from enforcing the deed if it was enforceable or from obtaining proper restitution if the deed was not unenforceable.

CONTRACTS — Remedies — Liquidated damages — Penalty — Where the defendant claimed that a term of the deed was a penalty and therefore unenforceable — Where the Court found that the provision was not a penalty because it could not properly be characterised as having the function of inducing performance of another provision of the deed.

CONTRACTS — Unjust contracts — Contracts Review Act 1980 (NSW) — Unjust — Where the plaintiff sought to enforce a deed of acknowledgement of debt — Where there was a material inequality of bargaining power between the plaintiff and defendant — Where the plaintiff exercised unfair pressure or unfair tactics in causing the defendant to enter into the deed — Where the Court found that provisions of the deed were unjust at the time the deed was entered into within the meaning of s 7 of the Act.

EQUITY — Equitable remedies — Restitution — Contract unenforceable — Where the plaintiff claimed in the alternative that the defendant held the property on constructive trust in favour of the plaintiff in proportion to the plaintiff’s contributions to the renovation of the property — Where there was no joint endeavour between the parties in the sense of Muschinski v Dodds — Where the Court found that the plaintiff was not entitled to an equitable interest in the property on the basis of a partial constructive trust.

EQUITY — Unconscionable conduct — Special disability or disadvantage — Whether unconscientious advantage taken — Where the defendant claimed that her signature to a deed was the product of duress or undue influence or unconscionability, and that she signed the deed in reliance upon a representation by the plaintiff — Where the Court found that there was no relationship of influence between the plaintiff and defendant to establish undue influence — Where the Court found that the deed should be set aside in equity on the ground that it was procured by the plaintiff taking unconscionable advantage of the defendant’s special disadvantage.

LAND LAW — Caveats — Caveatable interest — Where the defendant claimed that a deed executed by her did not grant a charge over the property in favour of the plaintiff to secure the payment of monies under the deed so that the plaintiff did not have a caveatable interest to support the caveat that he lodged — Where the Court found that the defendant’s consent to the lodgement of the caveat demonstrated an intention that a charge would be created over the property by the lodgement.

RESTITUTION — Nature of restitutionary liability — Unjust enrichment — At the plaintiff’s expense — Where the plaintiff’s claim for the enforcement of a deed of acknowledgment of debt failed — Where the defendant disputed the amount claimed by the plaintiff — Where the defendant was not given an opportunity to verify the amount claimed — Where the plaintiff failed to provide proof at the hearing for the amount claimed — Where the defendant should not in principle enjoy the whole benefit of the renovation works for nothing — Where the Court found that the plaintiff may be entitled to restitution from the defendant for the reasonable costs of the residential building work done and materials supplied, and the value that his participation in the renovation added to the property.

Michael Collins appeared for the defendant.

Reasons for the 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.

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.

Cappello & Anor v Scrivener & Anor [2020] NSWSC 1748

CONTRACTS – oral agreement between first plaintiff and first defendant concerning proposed consolidation and possible development of three adjoining sites – where neither party made a note of the agreement – where neither party confirmed to the other in writing an understanding of the agreement – where no one else present when agreement made – where no dispute that a binding agreement was made concerning sharing expenses and profits of the venture – whether agreement was subject to the plaintiff finding buyer for the consolidated sites.

CONTRACTS – oral agreement between first plaintiff and first defendant concerning proposed consolidation and possible development of three adjoining sites – whether parties’ post contractual conduct casts light on true nature of the agreement.

David Pritchard SC and David Rayment represented the Plaintiffs.

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.

Gooley v NSW Rural Assistance Authority [2020] NSWCA 156

CONTRACTS – variation – whether term of credit facility varied – whether variation supported by adequate consideration – where difference in obligations capable of benefiting either party – contract effectively varied – whether bank repudiated contract in maintaining that term varied.

BANKING AND FINANCE – Australian Securities and Investments Commission Act 2001 (Cth), ss 12CB and 12DA – whether in varying term of credit facility bank engaged in misleading or deceptive or unconscionable conduct – whether in making loan bank engaged in unconscionable conduct – no question of principle.

BANKING AND FINANCE – Code of Banking Practice, cll 2.2, 25.1 and 25.2 – whether breach of obligation to exercise care and skill of a diligent and prudent banker – whether breach of obligation to try to help borrower to overcome financial difficulties with a credit facility – no question of principle.

BANKING AND FINANCE – National Credit Code – whether loan “unjust” credit contract within s 76(1) – whether bank failed to respond to hardship notices as required by s 72(4) – whether National Credit Code applied – where the predominant purpose for which credit was provided or was intended to be provided was not a Code purpose – no question of principle.

PRIMARY INDUSTRY – Farm Debt Mediation Act 1994 (NSW) – whether enforcement action taken in contravention of Act – no question of principle.

Tim Castle SC represented the Second and Third Respondents.

Reasons for the decision can be found here.

Gooley v NSW Rural Assistance Authority (No 3) [2019] NSWSC 1314

EVIDENCE — records of prior communications concerning FOS complaint – admissibility – hearsay – prior consistent statement.

EVIDENCE — Opinion evidence — Expert opinion – economist’s opinion about conduct of bank towards customers – admissibility – Makita principles.

CONTRACTS – Performance – Variation of Terms – variation of loan repayment terms – need for consideration – assumption of risk that variation may benefit either party.

CONTRACTS — Misleading conduct under statute — variation of loan terms purportedly without customer’s knowledge and approval – misleading or deceptive conduct - unconscionable conduct - estoppel.

BANKING AND FINANCE — Banks – Statutory unconscionability – two year commercial loan – “asset lending” – breach of term of contract incorporating Banking Code of Practice.

BANKING AND FINANCE — Banks – breach of term of contract incorporating Banking Code of Practice cll 25.2 and 2.2 – requirement under term for co-operation between the customer and Bank – no breach by fixing final date for repayment after period of forbearance.

BANKING AND FINANCE — Banks — Bank accounts — Interest – entitlement to charge interest at contractual rates following expiry of loan – entitlement to interest on amounts paid and set aside for costs – repudiation – termination.

Tim Castle represented the Defendant.

Reasons for the judgement can be found here.

Lawrence v Ciantar; Ciantar v Lawrence [2019] NSWSC 464

CONTRACTS – written terms – oral terms – construction – whether plaintiff contractually obliged to carry out and complete certain works – whether joint venture agreement or contract caught by Home Building Act 1989 (NSW)

CONTRACTS – interpretation – ambiguity – evidence of surrounding circumstances – evidence of prior negotiations – evidence of subsequent conduct

STATUTORY INTERPRETATION – definitions – Home Building Act 1989 (NSW) – meaning of “residential building work” – contract to do sub-division works including construction of a driveway, retention tank and drainage works – whether preparatory works under contract constituted “residential building works”

Elisabeth Peden and Jennifer Mee represented the First and Second Defendants.

The 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.

QBE Underwriting Ltd as Managing Agent for Lloyds Syndicate 386 v Southern Colliery Maintenance Pty Ltd (2018) 97 NSWLR 459

INSURANCE— Liability insurance — Exclusions — Where insured entered agreement with third party containing warranties and agreement to indemnify — Whether insured would have been liable in absence of such agreement.

INSURANCE —  Insurance Contracts Act 1984 (Cth) — Duty of disclosure — Scope and duration — Where insurer disclosed to insured letter warning of possible obligations to indemnify third parties —  Insurance Contracts Act 1984  (Cth), s 21.

CONTRACTS — Construction — Interpretation — “‘For’” — “‘In respect of’” — Whether contract of insurance extended to indemnity for adverse costs order.

Tim Castle represented the Respondent.

Reasons for the judgement can be found here.

Vanguard Financial Planners Pty Ltd & Anor v Ale & Ors [2018] NSWSC 314

CONTRACT – construction – whether the Court can have regard to prior negotiations which indicate parties’ subjective intention in construing contract – implied terms – whether term is necessary for business efficacy or so obvious that it goes without saying – whether term is to be implied into the contract.

CONTRACT – repudiation – whether party has indicated a refusal to perform the contract – whether acceptance of repudiation was communicated to the promisor.

CORPORATIONS – management and administration – duties and liabilities of officers of corporation – claim for breach of statutory duties under Corporations Act 2001 (Cth) ss 180, 181, 182 and 183 – duty of care and diligence – duty to act in good faith in the company's best interests – duty to not improperly use position to gain advantage or cause detriment to company – duty to avoid improper use of information – where several expenses not apportioned between group companies in inter-company loan account – whether expenses paid by company in breach of duty – whether conduct of Defendants amounted to breach of statutory duties.

EQUITY – general principles – fiduciary obligations – where business venture has been consensually terminated – whether parties to venture owe fiduciary duties to one another – where several expenses not apportioned between group companies in inter-company loan account – whether expenses paid by company in breach of duty – whether director of company breached no conflict and no profit duties – whether director of company breached best interests and proper purposes duties – whether director of company breached equitable duty of confidentiality.

TRADE PRACTICES – application of Restraints of Trade Act 1976 (NSW) s 4 – where contractual restraint of trade in broad terms – whether restraint of trade is void for breach of public policy.

TRADE PRACTICES – misleading or deceptive conduct claim under s 18 of the Australian Consumer Law – whether representations made are misleading or deceptive – whether representations among directors of a company are made in trade or commerce.

Jennifer Mee was one of the counsel representing the Defendants.

Reasons for the decision can be found here.

Sydney Tools Pty Ltd v Robert Bosch (Australia) Pty Ltd [2017] NSWSC 1709

From the Supreme Court of New South Wales:

CONTRACTS - existence of a contract - “postal rule” - whether Trading Agreement contained obligation to supply absent acceptance of an order - - HELD: no executed contract - no obligation to supply - PRACTICE AND PROCEDURE - Practice Notice SC Eq 3 para 50 - “stop-watch” method of trial

David Rayment appeared for the Defendant.

Virk Pty Ltd (in liq) v YUM! Restaurants Australia Pty Ltd [2017] FCAFC 190

CONTRACT — implied terms — implication of duty or obligation of good faith and reasonableness — franchise agreement — where franchisor had discretionary power to set maximum prices for products — where parties accepted that power subject to duty of good faith — scope of duty of good faith and reasonableness — whether franchisor was obliged to act reasonably in an objective sense

NEGLIGENCE — franchise agreement — whether franchisor owed duty of care to franchisees in exercising power to set maximum prices for products — where franchisee alleged that franchisor owed franchisees a duty to exercise power so that franchisees could make, maintain or increase profits

CONSUMER LAW— unconscionable conduct — franchise agreement — where franchisee alleged that franchisor had engaged in unconscionable conduct in setting maximum prices for products

Tim Castle, James Arnott and Simona Gory represented the Appellant.

Reasons for the judgement can be found here.

Arab Bank Australia Ltd v Sayde Developments Pty Ltd [2016] NSWCA 328

CONTRACTS — Construction — Penalties — Commercial loan facility — Whether default interest provision constituted penalty — Determination as at date contract made — Whether presumption that default interest a penalty — Whether default interest extravagant or unconscionable — Whether function of default interest only to punish — Whether pre- estimate of loss required.

Noel Hutley SC and Tim Castle for the Appellant.

Reasons for the judgement can be found here.