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.

Chief Disruption Officer Pty Ltd as Trustee for the McDonald Family Trust v Michel, in the matter of Laava ID Pty Ltd [2022] FCA 148

PRACTICE AND PROCEDURE – Application for an order under rule 30.01 of the Federal Court Rules 2011 (Cth) that certain questions be determined separately – failure to make application before the trial date was fixed on an expedited basis – application for dispensation – principles relevant to exercise of the Court’s discretion – overarching purpose of civil practice and procedure – separate questions not ordered

PRACTICE AND PROCEDURE – Applications for security for costs against a trustee company – form of proposed security – whether proposed undertakings are an adequate form of security – whether a company the subject of an oppression action is entitled to security for costs – applications granted with security in the form of payment into Court or an irrevocable bank guarantee

PRACTICE AND PROCEDURE – Costs – whether a company the subject of an oppression action is entitled to payment of costs thrown away on amendment of pleadings – costs order made

David Rayment and Michael Collins appeared for the First, Second, Third and Fourth Defendants.

Reasons for the decision can be found here.

In the matter of Wil Brown Management Pty Ltd and Wil Brown Pty Ltd – Brownlee Enterprises Pty Ltd v Wilmen Pty Ltd [2022] NSWSC 207

PRACTICE AND PROCEDURE – application for leave to amend statement of claim – no issue of principle

CORPORATIONS – statutory derivative action – whether leave should be granted to allow applicant to bring proceedings on behalf of the two companies – where applicant is shareholder of each company – where applicant is also a beneficiary of the trust for which one of the companies acts as trustee – where applicant may also bring proceedings in capacity as beneficiary of the trust – whether probable that companies will bring proceedings themselves – whether applicant acting in good faith in seeking to bring proceedings – whether in the best interests of each company that leave be granted – whether proposed proceedings involve a serious question to be tried – where oppression under the Corporations Act 2001 (Cth), s 232 pleaded but means of redress under s 233 may not be available as assets of one company held on trust

David Rayment appeared for the Plaintiffs.

Reasons for the decision can be found here.

Leach v Burston [2022] FCA 87

PRACTICE AND PROCEDURE – interlocutory application for strike out and/or summary dismissal of applicant’s Points of Claim (POC) – whether it is reasonably arguable that s 46PO(3) of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) does not preclude the applicant from pursuing proceedings in this Court – whether it is reasonably arguable that the Court has jurisdiction to determine whether respondent contravened s 94(1) of the Sex Discrimination Act 1984 (Cth) (SD Act) – whether applicant’s claims have a reasonable prospect of success – whether it is reasonably arguable that “acts, omissions or practices” (s 46PO(3)(b) of AHRC Act) are limited to events constituting alleged sexual harassment/discrimination – whether appropriate to determine s 46PO(3) of the AHRC Act and s 94(1) of the SD Act issues in interlocutory application – where Court satisfied it is reasonably arguable that Court has jurisdiction to hear complaint with regard to s 94 of the SD Act – where claims relating to s 28G(2) of the SD Act do not disclose arguable cause of action – s 28G(2) of the SD Act claims to be summarily dismissed/struck out, but balance of claims in POC are reasonably arguable – application otherwise dismissed.

Renae Kumar appeared for the Applicant.

Reasons for the decision can be found here.

Snell v Glatis (No 4) [2021] NSWCA 42

PRACTICE – variation of orders by consent – effect of application to delay winding up of companies – need to provide proper basis

Michael Collins appeared for the first and second respondents.

Reasons for the decision can be found here.

Cappello & Anor v Scrivener & Anor (No 2) [2021] NSWSC 168

JUDGMENTS AND ORDERS – what orders should be made to reflect reasons in primary judgment – whether first defendant as well as second defendant liable to pay equitable compensation – quantum of equitable compensation

PRACTICE AND PROCEDURE – application by defendants for leave to re-open to tender documents produced on subpoena – where documents relevant to quantum – small number of documents – whether explanation offered by defendants adequate – whether exceptional circumstances shown – whether justice of case requires that leave be granted

David Pritchard SC and David Rayment represented the Plaintiffs.

Reasons for the decision can be found here.

Energy City Qatar v Hub Street Equipment Pty Ltd [2020] FCA 1033

PRACTICE AND PROCEDURE – application by the applicant that the respondent provide security for the applicant’s costs – whether the position of the respondent is purely defensive – where there is no cross-claim nor any order sought by the respondent against the applicant – application dismissed.

Tim Castle represented the Applicant.

Reasons for the decision can be found here.

PHAN V R [2018] NSWCCA 225

CRIME – conviction appeal – attempt to possess a commercial quantity of an unlawfully imported border controlled substance contrary to ss 11.1 and 307.5 of the Criminal Code (Cth)

CRIME – procedure – four accused – verdicts returned against two accused when jury was constituted by 12 jurors – lengthy jury deliberations – jury notes – Black direction in respect of co-accused – “partial” Black direction in respect of co-accused and appellant – discharge of juror – order that trial continue with 11 jurors – Black direction in respect of co-accused and appellant – discharge of another juror – order that the trial continue with 10 jurors – illness of juror in jury room – jury allowed to separate over Christmas – upon return of jury, third juror discharged – order that trial continue with 9 jurors – note from juror – examination by judge of juror and foreperson – jury discharged in respect of coaccused – jury not discharged in respect of appellant – guilty verdict returned shortly thereafter

CRIME – s 53C Jury Act – discharge of jurors – consideration of risk of substantial miscarriage of justice – secrecy of jury deliberations – maintenance of a fair trial – trial in progress beyond 2 months – order of jury deliberations – whether error in ordering continuation of trial with 9 jurors – anxiety disorder of discharged juror – unprecedented length of jury deliberations – reasonableness and well-being of remaining jurors – whether discharge of three jurors upset the balance of the remaining jurors – whether error in declining to discharge the jury following receipt of juror’s note and examination of juror and foreperson – whether error in continuing trial after discharge of jury in respect of coaccused – whether discharged juror may have been a dissentient juror – benefit of hindsight – whether error in confining consideration of discharge to the likelihood of reaching a unanimous verdict – s 56(3) Jury Act – House v The King error – failure to consider whether the ability of the nine remaining jurors to carry out their function had been compromised – substantial miscarriage of justice – guilty verdict quashed

Dr James Stellios represented the First Intervenor.

Reasons for the decision can be found here.

Devine v Liu [2018] NSWSC 1453

PRACTICE AND PROCEDURE – applications – pleadings and particulars – application to amend statement of claim – strike out and summary judgment application – statement of claim pleaded claim concerning a director’s duty to prevent insolvent trading by company under Corporations Act 2001 (Cth), s 588G – where statement of claim did not plead how and when company incurred relevant debts – where statement of claim did not particularise the nature of reliance on the presumption of insolvency under Corporations Act 2001 (Cth), s 588E(4).

PRACTICE AND PROCEDURE – applications – security for costs order – general principles as to ordering security for costs against plaintiff liquidator – litigation funding – solicitors for the liquidator conducting proceedings on a “no win, no fee” basis.

PRACTICE AND PROCEDURE – applications – security for costs order – general principles as to ordering security for costs against plaintiff liquidator – liquidator and company as co-plaintiffs – whether the company is a necessary party to voidable transaction and insolvent trading claims under the Corporations Act 2001 (Cth) – discussion of whether the joinder of a liquidator as co-plaintiff prevents the Court from ordering security even if co-plaintiff company is insolvent.

PRACTICE AND PROCEDURE – costs – costs payable forthwith – difficulty in assessing costs in circumstances where statement of claim struck out but with leave for the plaintiff to re-plead claim.

Tim Castle and Sandrine Alexandre-Hughes represented the Defendant.

Reasons for the judgement can be found here.

Ozmen Entertainment Pty Ltd v Neptune Hospitality Pty Ltd (No 3) [2018] FCA 1411

ADMIRALTY – joint venture to operate hospitality business aboard vessel – agreement to charter and license vessel.

PRACTICE AND PROCEDURE – further interlocutory application for an order to appoint a receiver and manager to take control of a vessel and business operated on-board –balance of convenience – where the relationships between the parties have broken down – application granted.

PRACTICE AND PROCEDURE – interlocutory application for payment of profits made pursuant to a joint venture agreement – counter interlocutory application for shared costs pursuant to a joint venture agreement – where there are competing legal arguments concerning construction of the joint venture agreement and evidentiary questions that are to be determined at final hearing – interlocutory applications refused.

PRACTICE AND PROCEDURE – application for security for costs – where it is conceded that security for future costs is payable but the plaintiffs contest payment of security for past costs and contend that funds held in trust pursuant to Court order should stand as security for costs of the proceeding – application for security for past costs refused – plaintiffs ordered to provide security for future costs, which are not to be payable from the funds held in trust.

Tim Castle represented the Plaintiff.

Reasons for the judgement can be found here.

Luo v Windy Hills Australian Game Meats Pty Ltd (No 2) [2018] NSWSC 1139 (24 July 2018)

PRACTICE & PROCEDURE – COSTS – Security for costs – individual plaintiff ordinarily resident outside Australia – corporate defendant admittedly unable to meet a costs order – whether security for costs should be refused because of the merits of the plaintiffs’ claim – relevance of defendants’ failure to comply with undertaking given to the Court – whether ordering security will stultify proceedings – other factors said to be relevant to exercise of discretion.

David Rayment represented the Plaintiffs/Respondents.

Reasons for the decision can be found here.

Gooley v NSW Rural Assistance Authority [2018] NSWSC 593

EVIDENCE – opinion evidence – exceptions – expert opinion – advance rulings – whether expert opinion admissible – whether parts of lay evidence admissible.

PRACTICE AND PROCEDURE – pleadings – whether case propounded in affidavits beyond pleadings – whether pleadings embarrassing.

Tim Castle represented the Defendant.

Reasons for the judgement can be found here.

Kekatos v Westpac Banking Corporation [2016] NSWCA 205

APPEAL – application for leave – where default judgment for money sum and possession of property set aside by consent – where subsequent application to set aside consent order and reinstate default judgment but for lesser amount – whether arguable defence to judgment for lesser amount – leave refused.

Tim Castle and Daniel Moujali represented the Respondent.

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 and James Green represented the Applicant.

Reasons for the judgement can be found here.