Brown v Cornwell

[2002] NSWSC 302

CITATION:	Brown v Cornwell [2002] NSWSC 302
CURRENT JURISDICTION:	Common Law
FILE NUMBER(S):	SC 13900/01
HEARING DATE(S):	Monday 18 March 2002
JUDGMENT DATE:	18 March 2002
PARTIES :	Allan John Brown v Brian Ernest Cornwell (in practice as Cornwell Solicitors & Advocates)
JUDGMENT OF:	Michael Grove J at 1

LOWER COURT JURISDICTION :	Local Court
LOWER COURT FILE NUMBER(S) :	879/2000
LOWER COURT JUDICIAL OFFICER :	C.A. Elliott, LCM

COUNSEL :	G. Carolan (Plaintiff) S.A. Kerr with M. Sneddon (Defendant)
SOLICITORS:	Turnbull Hill (Plaintiff) Colin Biggers & Paisley (Defendant)
CATCHWORDS:	LOCAL COURT - CIVIL CLAIM - COMMON MONEY COUNT - FACTUAL FINDINGS BY MAGISTRATE - NO ERROR IN RESULT
DECISION:	Summons dismissed with costs

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MICHAEL GROVE J

Monday 18 March 2002

13900/01 - ALLAN JOHN BROWN v BRIAN ERNEST CORNWELL (in practice as CORNWELL SOLICITORS & ADVOCATES)

JUDGMENT

1 HIS HONOUR: This is a summons seeking relief in connection with the decision of the Magistrate presiding at the Local Court in Toronto on 29 November 2001.

2 There was before that Court a claim by the plaintiff expressed as a common money count seeking payment of the sum of $37,000 for money had and received.

3 By way of background, it can be mentioned that the plaintiff was a builder and became involved in arrangements with a company called Natcat Pty Ltd and a man called Humphries who was connected with that corporation.

4 The defendant in the proceedings is a solicitor who was retained not by the plaintiff but by the latter. I mention in passing that the defendant had established a family trust in connection with the proposed development of land owned by Natcat Pty Ltd upon which it was proposed, apparently, to construct some six home units. It is not necessary for present purposes to distinguish between Mr Humphries, his company and his family trust.

5 The negotiations between the plaintiff and the person and entities that I have mentioned led to the drafting of a joint venture agreement. This was, in due course, executed by the plaintiff but a counterpart was apparently not executed by Mr Humphries or the trust or the corporation.

6 The money was paid into the defendant’s trust account in two parcels: the first of $20,000 and the second of $17,000. How those particular amounts came to be paid is fairly plain from the terms of the proposed joint venture agreement. I say “proposed” because it is the contention of the plaintiff that such agreement was never concluded.

7 The error contended to have been made by the Magistrate was in his adverting to provisions of the agreement and using that as a basis for his finding that there should be judgment for the defendant. The particular provisions in the document set out that the plaintiff agreed to pay a deposit of $20,000 which would be immediately released, in effect, to the Humphries’ interests and a further provision that another $17,000 be contributed towards development costs. The project eventually failed.

8 By consent I have had placed before me statements which were used as evidence in the Local Court and also a transcript of some oral evidence there given. It is plain that the defendant in due course, has disbursed the sum of $37,000 in accordance with the instructions of Natcat Pty Ltd. That he did so is hardly surprising, having regard to the terms of the respective receipts, both of which reveal that the money was received on the account of Natcat Pty Ltd described in the first receipt as “deposit” and the second as “settlement moneys”.

9 The argument on behalf of the plaintiff was formulated along the lines of asserting that as there was no evidence of a concluded joint venture agreement, then it was erroneous for the Magistrate to determine the case on the basis of its provisions and, further, that in the absence of such agreement the defendant must have been held to have been holding the money on behalf of the plaintiff.

10 My jurisdiction is limited to intervention in relation to legal error. There was a finding by the Magistrate that there was no exchange of the joint venture agreement nor, indeed, in its terms was there any requirement for such.

11 I recognise that the reference may be regarded as putting the cart before the horse but it suffices, in my view, to observe that an agreement of the nature of that proposed does not oblige reduction to writing and there was powerful evidence that the plaintiff regarded the agreement as evidencing the arrangements between himself and Natcat Pty Ltd and Mr Humphries in that his own solicitor dispatched the executed copy, together with one of the cheques for the amounts that I have mentioned. But, even if there were any doubt about that, the plaintiff’s own evidence is confirmatory of the circumstance that the defendant was not holding the money on behalf of the plaintiff.

12 In quite candid testimony he testified before the Magistrate that the money was in accordance with the agreement to go to Natcat Pty Ltd. He recognised that his negotiations were with Mr Humphries and finally he gave this evidence:

“Q. You knew that you were never giving the money to Mr Cornwell, correct?
That’s correct, I gave it to Natcat.”

13 In order to found an action for money had and received, it would be necessary for the plaintiff to demonstrate that the defendant had received the money for his use on a basis, at least, that in justice it belonged to him. His own testimony was that the money was placed with the defendant to the account of Natcat Pty Ltd. It appears to me then, therefore, that on any basis the plaintiff’s action was doomed to failure.

14 It was part of the learned Magistrate’s decision which he expressed in these terms: that he was satisfied that the defendant was entitled to pay the moneys according to the instructions of the third party, which is entirely compatible with the finding that I have made. It does not seem to me, therefore, that the determination of the matter was in any event critically dependent upon some finding concerning the existence or otherwise of the joint venture agreement.

15 I should add, however, in passing, that in my view no error has been demonstrated in the Magistrate taking the view that the document described as the joint venture agreement executed by the plaintiff and forwarded by his solicitor to the defendant represented his assertion as to the terms of the agreement between the parties.

16 I am unable to discern relevant error in the Magistrate’s reasons or determination.

17 The summons is dismissed with costs.

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Last Modified: 04/16/2002