Equititrust Ltd & Anor v Franks (No 2) - [2009] NSWCA 238

New South Wales

Court of Appeal

CITATION: Equititrust Ltd & Anor v Franks (No 2) [2009] NSWCA 238

HEARING DATE(S): 23 March 2009

JUDGMENT DATE:
13 August 2009

JUDGMENT OF: Ipp JA; Macfarlan JA; Handley AJA

DECISION: (1) Appeal allowed in part.
(2) The judgment in the Equity Division is varied by substituting judgment for $274,797.58 in lieu of $427,869 with effect from 4 April 2008.
(3) Order that $274,797.58 together with interest on that sum at the judgment rate from 4 April 2008 until the payment into Court, and thereafter at the rate paid on funds in Court, be paid out of Court to the solicitors for the respondent, and that the balance, together with accrued interest, be paid out to the solicitors for the appellants.
(4) Application for leave to appeal against the cost orders of 4 April 2008 dismissed.
(5) No order as to the costs of the appeal including the costs of the application for a stay heard on 18 August 2008.
(6) Appeal otherwise dismissed.

CATCHWORDS: PROCEDURE - costs and consequential orders - no issue of principle

CATEGORY: Consequential orders

PARTIES: Equititrust Ltd (formerly Equitiloan Ltd) (First Appellant)
Equitiloan Pty Ltd (formerly Equitiloan Securities Pty Ltd) (Second Appellant)
Phillip Maurice Franks (Respondent)

FILE NUMBER(S): CA 40193/08

COUNSEL: D J Jackson QC/M G McHugh (Appellants)
M S Willmott SC/M W Sneddon (Respondent)

SOLICITORS: Marsdens Law Group (Appellants)
Tucker & Cowen (Appellants)
DTA Lawyers (Respondent)

LOWER COURT JURISDICTION: Supreme Court - Equity Division

LOWER COURT FILE NUMBER(S): SC 4333/00

LOWER COURT JUDICIAL OFFICER: Brereton J

LOWER COURT DATE OF DECISION: 1 February 2008 and 4 April 2008

LOWER COURT MEDIUM NEUTRAL CITATION: Franks v Equitiloan Securities Pty Ltd [2008] NSWSC 33; Franks v Equitloan Scurities Pty Ltd (No 2) [2008] NSWSC 456

CA 40193/08
SC 4333/00

IPP JA
MACFARLAN JA
HANDLEY AJA
THURSDAY 13 AUGUST 2009

EQUITITRUST LTD & ANOR v FRANKS (NO 2)

Judgment

: Judgment on this appeal was delivered on 24 July 2009. The parties were directed to bring in short minutes of order reflecting the conclusions of the Court and were given the opportunity to make written submissions as to costs. Short minutes of order and written submissions have now been lodged.

Costs of the Appeal

2 The principal issues on the appeal related to promissory estoppel and set-off. A third issue as to a grant of leave to appeal concerning costs orders did not occupy any significant time during the oral hearing and was dealt with briefly in the written submissions and judgment. It can accordingly be left out of account in considering the appropriate orders as to costs of the appeal.

3 The appellants were successful on the estoppel issue, but only partly so because the Court held that, despite the appellants’ challenge to the primary judge’s estoppel findings, there was an operative estoppel for part of the relevant period.

4 The respondent was successful on the set-off issue.

5 In our view, it is appropriate that there be no…

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 Equititrust Ltd & Anor v Franks (No 2)

Details

AGLC: Equititrust Ltd v Franks (No 2) [2009] NSWCA 238
Case: [2009] NSWCA 238
Decision Date: 13 August 2009

CaseChat Overview and Summary

The appeal before the Court of Appeal of New South Wales concerned a dispute between Equititrust Ltd and another party (appellants) and Mr. Franks (respondent). The primary issue revolved around the quantum of a judgment awarded in the Equity Division, which the appellants sought to vary.

The court was required to determine whether the original judgment amount was correctly calculated and, consequently, whether the distribution of funds held in court should be altered. Additionally, the court considered an application for leave to appeal against prior costs orders and the costs of the appeal itself.

The Court of Appeal allowed the appeal in part, varying the original judgment from $427,869 to $274,797.58, effective from 4 April 2008. This revised sum, along with accrued interest, was to be distributed between the solicitors for the respondent and the solicitors for the appellants according to specific terms. The application for leave to appeal against the costs orders of 4 April 2008 was dismissed, and no order was made as to the costs of the appeal.

Orders

Orders of the court

(1) Appeal allowed in part. (2) The judgment in the Equity Division is varied by substituting judgment for $274,797.58 in lieu of $427,869 with effect from 4 April 2008. (3) Order that $274,797.58 together with interest on that sum at the judgment rate from 4 April 2008 until the payment into Court, and thereafter at the rate paid on funds in Court, be paid out of Court to the solicitors for the respondent, and that the balance, together with accrued interest, be paid out to the solicitors for the appellants. (4) Application for leave to appeal against the cost orders of 4 April 2008 dismissed. (5) No order as to the costs of the appeal including the costs of the application for a stay heard on 18 August 2008. (6) Appeal otherwise dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Equititrust Ltd & Anor v Franks (No 2) [2009] NSWCA 238
HEARING DATE(S):	23 March 2009
JUDGMENT DATE:	13 August 2009
JUDGMENT OF:	Ipp JA; Macfarlan JA; Handley AJA
DECISION:	(1) Appeal allowed in part. (2) The judgment in the Equity Division is varied by substituting judgment for $274,797.58 in lieu of $427,869 with effect from 4 April 2008. (3) Order that $274,797.58 together with interest on that sum at the judgment rate from 4 April 2008 until the payment into Court, and thereafter at the rate paid on funds in Court, be paid out of Court to the solicitors for the respondent, and that the balance, together with accrued interest, be paid out to the solicitors for the appellants. (4) Application for leave to appeal against the cost orders of 4 April 2008 dismissed. (5) No order as to the costs of the appeal including the costs of the application for a stay heard on 18 August 2008. (6) Appeal otherwise dismissed.
CATCHWORDS:	PROCEDURE - costs and consequential orders - no issue of principle
CATEGORY:	Consequential orders
PARTIES:	Equititrust Ltd (formerly Equitiloan Ltd) (First Appellant) Equitiloan Pty Ltd (formerly Equitiloan Securities Pty Ltd) (Second Appellant) Phillip Maurice Franks (Respondent)
FILE NUMBER(S):	CA 40193/08
COUNSEL:	D J Jackson QC/M G McHugh (Appellants) M S Willmott SC/M W Sneddon (Respondent)
SOLICITORS:	Marsdens Law Group (Appellants) Tucker & Cowen (Appellants) DTA Lawyers (Respondent)
LOWER COURT JURISDICTION:	Supreme Court - Equity Division
LOWER COURT FILE NUMBER(S):	SC 4333/00
LOWER COURT JUDICIAL OFFICER:	Brereton J
LOWER COURT DATE OF DECISION:	1 February 2008 and 4 April 2008
LOWER COURT MEDIUM NEUTRAL CITATION:	Franks v Equitiloan Securities Pty Ltd [2008] NSWSC 33; Franks v Equitloan Scurities Pty Ltd (No 2) [2008] NSWSC 456