Bechara v Sotrip Pty Ltd (in liq)

SUPREME COURT OF QUEENSLAND

CITATION:

Bechara v Sotrip Pty Ltd (in liq) [2013] QSC 100

PARTIES:

BUDDY BECHARA
(Plaintiff)
v
SOTRIP PTY LTD (IN LIQUIDATION)
ACN 085 132 378
(First Defendant)
and
RELIANCE FINANCIAL SERVICES PTY LTD
ACN 003 478 966
(Second Defendant)
and
SOTRIP NSW PTY LTD ACN 139 174 744
(Third Defendant)
and
RELIANCE FINANCIAL SERVICES NSW PTY LTD
ACN 131 889 766
(Fourth Defendant)

FILE NO/S:

BS 9372 of 2006

DIVISION:

Trial Division

PROCEEDING:

Civil Trial

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

17 April 2013

DELIVERED AT:

Brisbane

HEARING DATE:

22, 23 and 24 October 2013

JUDGE:

Philip McMurdo J

ORDER:

The plaintiff’s claim is dismissed.

CATCHWORDS:

EQUITY – TRUSTS AND TRUSTEES – EVIDENCE – GENERALLY – where trusts alleged created – whether evidence established existence of each trust

MORTGAGES – OTHER MATTERS – where plaintiff alleges he provided loans to person in control of first defendant – where plaintiff had mortgage agreement with first defendant over property held by first defendant as trustee – where plaintiff alleges mortgage secured repayment of loans to person in control of first defendant – where defendants allege that mortgage was created as security for funds which were never forthcoming from plaintiff – whether evidence supports existence of loans – whether mortgage secured repayment of loans – whether mortgage was created as security for loans which were never forthcoming from plaintiff

Land Title Act 1994 (Qld), s 109

Bechara v Sotrip Pty Ltd [2011] NSWSC 252, discussed
Lemery Holdings Pty Ltd v Reliance Financial Services Pty Ltd (2008) 74 NSWLR 550; [2008] NSWSC 1344, cited

COUNSEL:

P A Hastie for the plaintiff
No appearance for the first and second defendants
D R Murphy SC, with J C Ashcroft for the third and fourth defendants

SOLICITORS:

Patane Lawyers for the plaintiff
No appearance for the first and second defendants
Proctor & Associates for the third and fourth defendants

1. This is a contest for what remains of the proceeds of sale of two lots of land at Railway Street, Mudgeeraba.  They were sold in 2008 by the liquidator of the first defendant (“Sotrip”), which had been the registered owner since December 1998.  There were no registered encumbrances and after payment of the expenses of sale and some of the costs of the liquidation of Sotrip, an amount of $660,000 was paid into court pending the determination of this dispute. 

1. There are effectively three distinct claims to all or some of the funds.  The first is by the plaintiff, Mr Bechara, who was granted a mortgage over the lots in 2005.  The mortgage was never registered.  On its face it secured an amount of $450,000 to be paid by Sotrip to him.

1. Secondly, there are the claims by the third and fourth defendants, which effectively constitute the same interest.  They dispute Mr Bechara’s claim, saying that there is and has been no debt which is secured by his mortgage.  They say that the lands were held by Sotrip as…