Anjoul v Anjoul (No 3) - [2022] NSWSC 1456

Supreme Court

New South Wales

Medium Neutral Citation: Anjoul v Anjoul (No 3) [2022] NSWSC 1456
Hearing dates: 19 September 2022
Decision date: 27 October 2022
Jurisdiction: Equity
Before: Robb J
Decision:
See [62] - [65] below

Catchwords:
EQUITY — general principles and maxims — they who seek equity must do equity — defendant provisionally successful in defending enforcement of deed on grounds of unconscionable conduct and Contracts Review Act 1980 (NSW), s 7 — Court finds that defendant ought to pay plaintiff compensation as condition to making order declaring deed void — parties granted leave to adduce certain evidence on issue of quantum of compensation payable to plaintiff — assessment of compensation — competing expert reports — over-capitalisation in renovating residential property — plaintiff entitled to $400,000 in compensation

Legislation Cited:
Contracts Review Act 1980 (NSW), ss 7, 8, Sch 1 cl 1
Home Building Act 1989 (NSW)

Cases Cited:
Anjoul v Anjoul [2021] NSWSC 592
Anjoul v Anjoul (No 2) [2021] NSWSC 1511

Category: Consequential orders
Parties: Jerry Anjoul (Plaintiff)
Ashley Anjoul (Defendant)
Representation:
Counsel:
G P McNally SC (Plaintiff)
P Newton SC & M Collins (Defendant)
Solicitors:
Edwards Kirby Lawyers (Plaintiff)
JD Law Group (Defendant)

File Number(s): 2018/383865

JUDGMENT

This is the third judgment in these proceedings between the plaintiff, Jerry Anjoul, and the defendant, Ashley Anjoul. Ashley Anjoul is the former wife of Anthony Anjoul, who is the brother of Jerry Anjoul.
As the parties did, and without meaning any disrespect, I will refer to the parties and Anthony by their first names.
The principal judgment was delivered on 25 May 2021: Anjoul v Anjoul [2021] NSWSC 592 (“J1”). I will assume that the reader has knowledge of the principal judgment. It dealt with an application by Jerry to enforce a deed dated 14 November 2013 to which Jerry and Ashley were parties. The deed required Ashley to pay Jerry $700,000 with CPI increases for the cost allegedly incurred by Jerry in carrying out a substantial renovation of a home in Winston Hills that was solely in Ashley's name. In the alternative, Jerry sought a declaration that Ashley held her interest in the property subject to a constructive trust in favour of Jerry in proportion to Jerry's contributions to the renovation of the property. Finally, Jerry sought an order that Ashley make restitution to Jerry in the sum of $743,353.45.
Ashley responded to Jerry's claim by seeking an order that the deed be set aside on the ground that it had been procured by unconscionable conduct on the part of Jerry. She also sought an order declaring the deed to be void under s 7 of the Contracts Review Act 1980 (NSW). Finally, Ashley sought a declaration to the effect that Jerry was not entitled to enforce against her any right to payment for the renovation work because of the operation of the Home Building Act 1989 (NSW).
Ashley provisionally succeeded on the first two of these responses but failed on the third. I say ‘provisionally’…

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: [2022] NSWSC 1456
Decision Date: 27 October 2022

CaseChat Overview and Summary

The case of Anjoul v Anjoul (No 3) involved a dispute between the parties regarding the enforcement of a deed, with the defendant seeking to defend its enforcement on the grounds of unconscionable conduct and the Contracts Review Act 1980 (NSW), section 7. The dispute came before the court for resolution, with the primary focus on the defendant's defence of unconscionable conduct and the implications of the Contracts Review Act. The court was tasked with determining whether the defendant's conduct was unconscionable, and if so, whether the deed should be declared void. Additionally, the court needed to consider the principle of "they who seek equity must do equity," and whether the defendant ought to compensate the plaintiff as a condition to making the order.

The court examined the evidence presented, including expert reports on the over-capitalisation of a residential property renovation, and assessed the competing arguments regarding the quantum of compensation payable to the plaintiff. The court found that the defendant's conduct was indeed unconscionable, leading to the decision that the deed should be declared void. However, the court also determined that the defendant ought to pay compensation to the plaintiff as a condition to the order, in accordance with the principle of "they who seek equity must do equity." The court granted the parties leave to adduce certain evidence on the issue of the quantum of compensation payable to the plaintiff.

Ultimately, the court ordered that the plaintiff was entitled to $400,000 in compensation. This decision recognised the need for the defendant to compensate the plaintiff for the unconscionable conduct and the resulting voiding of the deed. The court's reasoning and outcome demonstrated a careful consideration of the legal principles at play and the evidence presented, resulting in a fair and just resolution to the dispute.

Orders