Annacott Pty Ltd v Konann Pty Ltd - [2012] VSC 389

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 89 of 2012

ANNACOTT PTY LTD (ACN 126 010 955)	Plaintiff
v
KONANN PTY LTD (ACN 084 100 149)	Defendant

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JUDGE:	McMILLAN J
WHERE HELD:	Melbourne
DATE OF HEARING:	2, 4 and 11 April 2012
DATE OF JUDGMENT:	6 September 2012
CASE MAY BE CITED AS:	Annacott Pty Ltd v Konann Pty Ltd
MEDIUM NEUTRAL CITATION:	[2012] VSC 389

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REMEDIES – Declarations sought in relation to the beneficial ownership of the property – Principles relating to the granting of declaratory relief – Russian Commercial and Industrial Bank v British Bank of Foreign Trade [1921] All E.R. 329; Aussie Airlines v Australian Airlines (1996) 68 FCR 406 – A real and not a theoretical question – Swift Australian Co. Pty Limited v South British Insurance Co. Limited [1970] VR 368 – Applicant’s status – Applicant’s interest – Proper contradictor – In the Matter of Pilchowski (Unreported Supreme Court of Queensland, Cullinane J, 29 August 1997).

PRACTICE AND PROCEDURE – Objection by the State Revenue Office on the basis that the declarations sought usurp the powers of the State Revenue Office – Discretion of the Court – Forster v JododexAust.Pty Ltd (1972) 127 CLR 421 – Cuming Campbell Investments Pty Ltd v Collector of Imposts (Vict) [1938] 60 CLR 741 – McGarrigle v Public Service Board [1979] 1 NSWLR 292.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms R. Kaye	Foster Nicholson Legal
For the Defendant	Mr M. Hines	Hunt & Hunt

HER HONOUR:

Introduction

In this proceeding, the plaintiff, Annacott, seeks declarations in relation to the beneficial ownership of a property known as “Tulliallan”, 805 Berwick-Cranbourne Road, Cranbourne North (“the Property”).

The defendant, Konann, is registered as the proprietor of the Property in its capacity as the trustee of the Peter White Family Trust (“the White Family Trust”). Until September 2006, Mr Peter and Mr Garry White were registered as proprietors of the Property.

The declarations sought are:

(a) A declaration that Annacott is and has been since 14 September 1994 the sole beneficial owner of the Property.

(b) A declaration that Mr Peter and Mr Garry White held the Property on trust for Annacott at all times between 14 September 1994 and 7 July 2006.

(c) Alternatively to (b), a declaration that Mr Peter and Mr Garry White held the Property on a resulting trust for Annacott at all times between 14 September 1994 and 7 July 2006.

(d) Alternatively to (b) and (c), a declaration that Mr Peter and Mr Garry White held the Property on a constructive trust for Annacott at all times between 14 September 1994 and 7 July 2006.

(e) A declaration that on 7 July 2006, Mr Peter and Mr Garry White transferred the Property to Konann as constructive trustee for Annacott.

(f) A declaration that Konann holds the Property as constructive trustee for Annacott and has done so since 7 July 2006.

Preliminary…

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: [2012] VSC 389
Decision Date: 6 September 2012

CaseChat Overview and Summary

The case of Annacott Pty Ltd v Konann Pty Ltd involved a dispute over the beneficial ownership of certain property. The matter was heard in the Supreme Court of Queensland. The plaintiff, Annacott Pty Ltd, sought declarations regarding the beneficial ownership of the property, and the defendant, Konann Pty Ltd, contested these declarations. The State Revenue Office also raised an objection, arguing that the declarations sought by the plaintiff would usurp its powers.

The court had to decide several legal issues, including whether the declarations sought by the plaintiff were appropriate, whether the plaintiff had standing to bring the action, and whether the State Revenue Office's objection was valid. The court considered relevant precedents, such as Russian Commercial and Industrial Bank v British Bank of Foreign Trade [1921] All E.R. 329, Aussie Airlines v Australian Airlines (1996) 68 FCR 406, Swift Australian Co. Pty Limited v South British Insurance Co. Limited [1970] VR 368, and In the Matter of Pilchowski (Unreported Supreme Court of Queensland, Cullinane J, 29 August 1997). The court also examined the principles relating to the granting of declaratory relief.

The court found that the plaintiff's request for declarations was not theoretical but a real question that required a judicial determination. It also held that the plaintiff had the necessary standing to bring the action, and its interest was not merely academic. The court exercised its discretion in relation to the objection by the State Revenue Office, finding that the declarations sought did not usurp the powers of the State Revenue Office. Relevant precedents considered included Forster v Jododex Aust. Pty Ltd (1972) 127 CLR 421, Cuming Campbell Investments Pty Ltd v Collector of Imposts (Vict) [1938] 60 CLR 741, and McGarrigle v Public Service Board [1979] 1 NSWLR 292.

The court granted the declarations sought by the plaintiff, Annacott Pty Ltd, regarding the beneficial ownership of the property. The court dismissed the objection raised by the State Revenue Office. No further orders were made.

Orders