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Anjoul v Anjoul

Anjoul v Anjoul

Case [2021] NSWSC 592 25 May 2021

Unjust Contracts

Unconscionable Conduct

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Supreme Court

New South Wales

Medium Neutral Citation: Anjoul v Anjoul [2021] NSWSC 592
Hearing dates: 15 February 2021 – 19 February 2021; final written submissions 11 March 2021
Decision date: 25 May 2021
Jurisdiction: Equity
Before: Robb J
Decision:
See pars [265], [272], [278], [289], [300], [303], [306], [336], [345], [353] and [368]-[370]. A directions hearing will be fixed at which time the Court will consider the orders to be made to give effect to these reasons for judgment and, if appropriate, the future conduct of the proceedings

Catchwords:
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…

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.

Continue reading Anjoul v Anjoul

Details

AGLC: Anjoul v Anjoul [2021] NSWSC 592
Case: [2021] NSWSC 592
Decision Date: 25 May 2021

CaseChat Overview and Summary

In the matter of Anjoul v Anjoul, the plaintiff sought to enforce a deed of acknowledgement of debt against the defendant for contributions made to the renovation of a property. The defendant argued that the plaintiff was not entitled to any recovery due to his failure to comply with the Home Building Act 1989 (NSW) by not holding a contractor licence or insurance. The plaintiff also sought alternative relief in equity, claiming a constructive trust over the property and restitution for the work done. The defendant argued that the deed was procured by duress or undue influence and was therefore unconscionable. The court had to determine whether the plaintiff could enforce the deed, whether it was a penalty, if it was unjust, and if there was any entitlement to restitution.

The court found that the Home Building Act did not prohibit the plaintiff from enforcing the deed if it was enforceable, nor did it bar him from obtaining restitution if the deed was not enforceable. The court also held that the liquidated damages clause in the deed was not a penalty, as it could not be characterised as inducing performance of another provision of the deed. Regarding the argument that the deed was unjust, the court found that there was a material inequality of bargaining power and that the plaintiff exercised unfair pressure or tactics in causing the defendant to enter into the deed. However, the court found that the plaintiff was not entitled to an equitable interest in the property on the basis of a partial constructive trust, as there was no joint endeavour between the parties. The court also found that there was no relationship of influence between the parties to establish undue influence, but that the deed should be set aside on the ground that it was procured by the plaintiff taking unconscionable advantage of the defendant’s special disadvantage.

The court found that the plaintiff was entitled to a caveatable interest in the property as 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. The court also 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. The defendant should not in principle enjoy the whole benefit of the renovation works for nothing. The court ordered that the deed be set aside and that the plaintiff be entitled to restitution 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.

Orders