Atidote Pty Ltd t/as Harcourts, The Property People Sydney v Najjar [2024] NSWSC 206

JUDGMENTS AND ORDERS - enforcement – garnishee order – attachment of debts – Civil Procedure Act 2005, s 117 the plaintiff, a managing agent holds funds collected from the tenants of the second defendant, the owner of units in a residential and commercial building, on trust for the second defendant pursuant to a management agency agreement – the owners corporation of the strata plan of the building, the third defendant, obtains a money judgment in the District Court against the second defendant and serves a garnishee notice on the second defendant seeking to attach debts owed by the plaintiff to the second defendant pursuant to the management agreement – the plaintiff pays funds in its possession at the time of service of the garnishee order and thereafter to the third defendant – the second defendant defaults to its mortgagee and the mortgagee appoints a receiver, the first defendant – the receiver contends that the plaintiff wrongly paid monies under the garnishee order to the third defendant after the date of service of the garnishee order – whether the third defendant is entitled to retain the monies so received or whether those monies should be repaid to the plaintiff – construction of the expression “due and payable”.

Michael Collins appeared for the first and second defendants.

Reasons for the decision can be found here.

The Owners – Strata Plan No 80877 v Lannock Capital 2 Pty Ltd [2023] NSWSC 1401

LAND LAW — Strata title — Termination of strata scheme — Where termination orders sought not unanimous — Where there are existing debts owed by owners corporation to an unsecured lender — Whether registered mortgagees ought be paid first from proceeds of sale if termination orders made — Whether collective sale pursuant to Part 10 of the Strata Schemes Development Act is more appropriate in the circumstances

Jennifer Mee appeared for the First Defendant and Michael Collins appeared for the Sixth Defendant.

Reasons for the decision can be found here.

Hester v Commonwealth Bank of Australia [2023] NSWCA 147

APPEALS – Procedure – Time limits – Extension of time – where default judgment entered for respondent for possession of land owned by applicant – where delay of three years since filing notice of intention to appeal – whether explanation for delay satisfactory – whether fairly arguable case – where applicant took issue with documents relied on in Statement of Claim – where default judgment as no defence filed – where applicant did not identify error with decision to enter default judgment – leave to extend time to move on Summons refused

Michael Collins appeared for the Respondent.

Reasons for the decision can be found here.

KITE (TRUSTEE), IN THE MATTER OF MURRAY (A BANKRUPT) V MURRAY [2023] FCA 198

BANKRUPTCY – application by the trustee in bankruptcy (trustee) to recover a property or an interest in a property – whether the property, or interest in that property, is held on trust for the bankrupt estate – whether the presumption of advancement applies to the matrimonial home – whether the presumption has been rebutted – where title is placed in the wife’s name only – whether the trustee is entitled to relief under s 139DA of the Bankruptcy Act 1966 (Cth) – whether the transfer of the property was an undervalued transaction or a transaction to defeat creditors and thus void against the trustee – application allowed in part.

Michael Collins appeared for the Respondent.

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 (No 3) [2022] FCA 1302

CORPORATIONS – company formed by three Founders to develop and exploit a product – Shareholders’ Deed entered into between the Founders and the associated Founder Shareholders – breakdown of relationship between two of the Founders – whether the relationship between the Founders and their associated Founder Shareholders was governed by an understanding that their respective shareholdings would remain equal and which survived entry into the Shareholders’ Deed – held no such understanding established – whether there was oppression of the second plaintiff because of: (1) conduct alleged to have forced out the first plaintiff as CEO and a director of the company – held no oppression of the second plaintiff; (2) the issue and proposed issue of shares and options after the first plaintiff ceased to be involved in the company – held oppression established for some but not all of the impugned conduct

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

Reasons for the decision can be found here.

Tito (Administrator of the Estate of Atkins) v Atkins [2022] FCA 183

SUPERANNUATION – application to review decision of the Superannuation Complaints Tribunal affirming Trustee’s decision to distribute entire death benefit from superannuation fund to deceased member’s wife instead of to deceased’s estate – whether Tribunal made decision according to law – whether no-evidence before Tribunal to sustain finding that deceased member had made a Preferred Nomination – where Tribunal did not overlook computer generated record of Preferred Nomination – where it was not in dispute before Tribunal that a Preferred Nomination had been made – whether Tribunal’s decision was legally unreasonable or irrational or illogical – where Trustee conferred a discretion under Trust Deed Rules to not give effect to deceased member’s intention – where siblings were not financially dependent on deceased member – where wife was a dependant at time of deceased member’s death – where cultural and customary factors may establish a dependency relationship – where it was fair and reasonable for Tribunal to accept Trustee’s decision to distribute entire death benefit to wife – appeal dismissed.

Michael Collins appeared for the Second Respondent.

Reasons for the decision can be found here.

In the matter of Waratah on Alstonville Pty Ltd (administrators appointed) [2021] FCA 953

CORPORATIONS – application by administrators to extend convening period for second meeting of creditors under ss 439A(6) and 447A of the Corporations Act 2001 (Cth) – where interested person opposed the extension – where interested person entered into construction contracts with company – where interested person claims security under terms of construction contracts on the basis of registered judgments of the Supreme Court of New South Wales and the District Court of New South Wales obtained under the Building and Construction Industry Security of Payment Act 1999 (NSW) following an adjudication process – where adjudication certificates and registered judgments obtained after the appointment of the administrators – where there are extant proceedings commenced before the appointment of the administrators seeking orders setting aside determinations on which the adjudication certificates were based – where there are extant proceedings commenced after the appointment of the administrators seeking to set aside registered judgments – where administrators sought extension to allow administrators to investigate security claims of the interested person, security claims of the trust which provided vendor finance for the property on which construction occurred and security claims of the trust which provided finance for the construction – where director of the company in administration and the trustee of the trust which provided construction finance raised the possibility of proposing a deed of company arrangement but none yet proposed – where finding that creditors are not unfairly prejudiced by an extension – application granted for period shorter than that proposed by administrators.

Michael Collins appeared for the Plaintiffs.

Reasons for the decision can be found here.

Thompson v Perpetual Trustees Victoria Ltd [2021] NSWSC 622

LIMITATION ACT – lender advances loan 14 years ago – fraudulent broker mis-directs funds to girlfriend – fraud discovered 12 years ago – broker imprisoned – plaintiffs repay lender 9 years ago – equitable claim against lender for unconscionable conduct – s 12GF(2), ASIC Act applies by analogy – whether unjust to apply – not unjust if applied from when plaintiffs aware of fraud.

Michael Collins appeared for the applicant / first defendant.

Reasons for the decision can be found here.

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.

Perpetual Corporate Trust Limited v Xu [2021] FCCA 1178

BANKRUPTCY – interim application – urgent application – direction to registered trustee – where respondent has failed to comply with judgment – where respondent has interfered with sale of property

Michael Collins 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.