ESG Epping Pty Ltd v Love - [2019] VSC 250

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL COURT

S ECI 2017 00200

ESG EPPING PTY LTD (ACN 159 368 760)	Plaintiff
v
HELEN MARGARET LOVE	Defendant

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JUDGE:	ALMOND J
WHERE HELD:	Melbourne
DATES OF HEARING:	25, 26 February, 5 April 2019
DATE OF JUDGMENT:	17 April 2019
CASE MAY BE CITED AS:	ESG Epping Pty Ltd v Love
MEDIUM NEUTRAL CITATION:	[2019] VSC 250

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CONTRACT – Whether royalties payable pursuant to fill supply agreement – Alleged partnership – Trustees in bankruptcy – Mortgagee in possession – Access to land given pursuant to licence from mortgagee – Frustration of agreement – Breach of essential term – No longer able to give substantial benefit of contract – Whether fill imported onto property pursuant to work authority or planning permit – Purported transfer of work authority void – Partnership Act 1958 ss 5, 37 – Bankruptcy Act 1966 ss 5, 58, 61 – Transfer of Land Act 1958 s 78, Extractive Industries Development Act 1995 ss 3, 9, 19, 20, 22, 31, 32, 33, 79 – Mineral Resources (Sustainable Development) Act 1990 ss 4, 8AB, 69, 70, 74, 77J, 77M, 77N, 77O, 78A, 79, 81 – oOh! Media Roadside v Diamond Wheels (2011) 32 VR 255 – Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd (2007) 233 CLR 115 – Hongkong Fir Shipping Co Ltd v Kawasaki Kisen Kaisha Ltd [1962] 2 QB 26 – DTR Nominees Pty Ltd v Mona Homes Pty Ltd (1978) 138 CLR 423 – Vitol SA v Norelf Ltd [1996] AC 800 – R v Toohey; ex parte Meneling Station Pty Ltd (1982) 158 CLR 327.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	C E Shaw	Thomson Geer
For the Defendant	Self-Represented

HIS HONOUR:

This proceeding primarily concerns competing claims to a sum of money held in the trust account of the solicitors for the plaintiff.

By a fill supply agreement made on 7 December 2012 between the plaintiff, ESG Epping Pty Ltd (‘ESG’), and the late Thomas James Love, Mr and Mrs Love agreed to allow ESG the exclusive right to import fill onto property situated at and known as 460 Cooper Street Epping (‘the Property’) until 28 February 2013 (‘Fill Supply Agreement’).[1]
[1]Fill Supply Agreement, 7 December 2012, CB204-CB213.

By a further agreement, ESG and Mr and Mrs Love agreed to extend the Fill Supply Agreement on its terms (Further Agreement), and as amended by the Further Agreement, to 28 December 2017 (collectively, ‘the Agreement’).[2]
[2]CB263-264.

The Agreement included terms that Mr and Mrs Love would provide unrestricted access for ESG to enter onto and import fill onto the Property, in consideration for which ESG would pay Mr and Mrs Love royalties at agreed rates.[3]
[3]Clause 6.1 and recital B of the Fill Supply Agreement; CB205, CB208; Further Agreement, CB263.

At all relevant times the Property was mortgaged to the Commonwealth Bank of Australia Ltd (‘CBA’). On or about 22 January 2016, and pursuant to the terms of…

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 ESG Epping Pty Ltd v Love

Details

AGLC: ESG Epping Pty Ltd v Love [2019] VSC 250
Case: [2019] VSC 250
Decision Date: 17 April 2019

CaseChat Overview and Summary

ESG Epping Pty Ltd, a company in liquidation, sued Mr Love, a former director of the company, seeking the payment of royalties under a fill supply agreement, and for an account of profits made from the use of land. The case was heard in the Supreme Court of Victoria. ESG Epping, which was the sole owner of the property, executed a fill supply agreement with Mr Love, pursuant to which he was to supply fill to the property. ESG Epping subsequently went into liquidation and Mr Love was appointed as the trustee in bankruptcy of the company. ESG Epping, through its liquidators, brought an action against Mr Love, alleging that he owed royalties under the fill supply agreement, that he had failed to account for profits made from the use of the property, and that he had failed to provide a statutory declaration of the amounts owing. The court had to determine whether royalties were payable under the fill supply agreement, whether a partnership existed between the parties, and whether the fill was imported onto the property pursuant to a work authority or planning permit.

The court held that royalties were not payable under the fill supply agreement as the contract had been frustrated. The court found that the agreement had been frustrated due to the impossibility of completing the project and the inability of Mr Love to provide the substantial benefit of the contract. The court also held that no partnership existed between the parties, and that Mr Love was not liable for an account of profits. The court found that the fill was not imported onto the property pursuant to a work authority or planning permit, and that the purported transfer of the work authority was void.

The court ordered that the action be dismissed, with costs to be paid by ESG Epping. The court also ordered that Mr Love was not liable for an account of profits, and that the purported transfer of the work authority was void.

Orders