ACN 062 895 774 Pty Ltd v Tyndall - [2007] NSWCA 64

Appeal Outcome: Special leave application deemed abandoned - 22 October 2007

New South Wales

Court of Appeal

CITATION: ACN 062 895 774 PTY LTD v TYNDALL [2007] NSWCA 64

HEARING DATE(S): 20 February 2007

JUDGMENT DATE:
27 March 2007

JUDGMENT OF: Mason P at 1; Beazley JA at 64; Ipp JA at 65

DECISION: Appeal allowed

CATCHWORDS: EQUITY – General principles – equitable liens – against a third party – arising from unexpressed or implied terms of an arrangement or agreement - unconscientious conduct - EVIDENCE – General matters – objection taken at trial – deferring a ruling as to the objection - practice deprecated

LEGISLATION CITED: Contracts Review Act 1980
Property Relationships Act 1984

CASES CITED: Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502
Deane-Willcocks v Nothintoohard Pty Ltd (in liq) [2006] NSWCA 311
Hewett v Court (1983) 149 CLR 639
Kwan v Kang [2003] NSWCA 336

PARTIES: ACN 062 895 774 PTY LTD
Diane TYNDALL

FILE NUMBER(S): CA 40095/2006

COUNSEL: Appellant: B R McClintock SC/ D J Durston
Respondent: M Sahade

SOLICITORS: Appellant: Searle & Associates Lawyers
Respondent: Comino Prassas

LOWER COURT JURISDICTION: Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S): SC 1110/2004

LOWER COURT JUDICIAL OFFICER: Sully J

LOWER COURT DATE OF DECISION: 7 December 2005

LOWER COURT MEDIUM NEUTRAL CITATION: NSWSC 1124

CA 40095/06

MASON P
BEAZLEY JA
IPP JA
Tuesday 27 March 2007

ACN 062 895 774 PTY LTD v Diane TYNDALL

The appellant company was an entity registered in 1993 by Mr Clee, the respondent’s former defacto partner, and was the corporate entity through which Mr Clee conducted a debt-collecting business. The appellant also operated as trustee of Mr Clee’s property/superannuation fund.

In 1994 the respondent and Mr Clee, while in a defacto cohabitation relationship, selected a property in Killarney Heights as their home. The appellant company (of which Mr Clee was the managing director) purchased the property, but it was subject to a mortgage from ANZ Bank for approximately its entire sum. Mr Clee paid the mortgage instalments.

On 21 March 1996 the respondent and Mr Clee entered into a cohabitation agreement in the form of a deed under the De Facto Relationships Act 1984. Under the Deed Mr Clee agreed to have the home in Killarney Heights released from any mortgages and do all things necessary to have the home transferred to the respondent by 1 November 1997 or within three months of the date of their separation, whichever came first. In the agreement Mr Clee warranted that he had the power and/or control to require the appellant company to comply with his directions in accordance with the agreement. The agreement also stated that if the respondent and Mr Clee were to cease to cohabit as man and wife then the minimum amount to which the respondent would be entitled under the De Facto Relationships Act 1984 would be the amount of the unencumbered home at Killarney Heights.

Mr Clee moved out of the home in March…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] NSWCA 64
Decision Date: 27 March 2007

CaseChat Overview and Summary

ACN 062 895 774 Pty Ltd (the appellant) appealed to the New South Wales Court of Appeal against a decision of the primary judge that granted an equitable lien over certain property in favour of Tyndall (the respondent). The dispute concerned the nature and enforceability of an equitable lien claimed by the respondent against the appellant, a third party, arising from an alleged unconscientious retention of property.

The Court of Appeal was required to determine whether the primary judge erred in finding that an equitable lien arose in favour of the respondent against the appellant. Specifically, the court considered whether the appellant's conduct was unconscientious in a manner that would justify the imposition of such a lien, and whether the evidence supported the existence of an implied agreement or understanding that would give rise to equitable rights in the respondent. The court also addressed a procedural issue concerning the deferral of a ruling on an objection to evidence at trial, which was deprecated as a matter of practice.

The Court of Appeal found that the primary judge had erred in imposing the equitable lien. The court reasoned that the evidence did not establish the necessary unconscientious conduct on the part of the appellant that would warrant the imposition of an equitable lien against a third party. The principles of equity require a clear demonstration of unconscionability, and the court concluded that the facts as presented did not meet this threshold. The court also noted that the deferral of the evidentiary objection was an undesirable practice.

The appeal was allowed, and the orders of the primary judge were set aside.

Orders

Orders of the court

Appeal allowed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	ACN 062 895 774 PTY LTD v TYNDALL [2007] NSWCA 64
HEARING DATE(S):	20 February 2007
JUDGMENT DATE:	27 March 2007
JUDGMENT OF:	Mason P at 1; Beazley JA at 64; Ipp JA at 65
DECISION:	Appeal allowed
CATCHWORDS:	EQUITY – General principles – equitable liens – against a third party – arising from unexpressed or implied terms of an arrangement or agreement - unconscientious conduct - EVIDENCE – General matters – objection taken at trial – deferring a ruling as to the objection - practice deprecated
LEGISLATION CITED:	Contracts Review Act 1980 Property Relationships Act 1984
CASES CITED:	Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502 Deane-Willcocks v Nothintoohard Pty Ltd (in liq) [2006] NSWCA 311 Hewett v Court (1983) 149 CLR 639 Kwan v Kang [2003] NSWCA 336
PARTIES:	ACN 062 895 774 PTY LTD Diane TYNDALL
FILE NUMBER(S):	CA 40095/2006
COUNSEL:	Appellant: B R McClintock SC/ D J Durston Respondent: M Sahade
SOLICITORS:	Appellant: Searle & Associates Lawyers Respondent: Comino Prassas
LOWER COURT JURISDICTION:	Supreme Court - Common Law Division
LOWER COURT FILE NUMBER(S):	SC 1110/2004
LOWER COURT JUDICIAL OFFICER:	Sully J
LOWER COURT DATE OF DECISION:	7 December 2005
LOWER COURT MEDIUM NEUTRAL CITATION:	NSWSC 1124