Court of Appeal
Supreme Court
New South Wales
- Summary available
Medium Neutral Citation: French v Bremner; Bremner v French [2020] NSWCA 339 Hearing dates: 3, 4 December 2020 Decision date: 18 December 2020 Before: Meagher JA at [1];
Leeming JA at [2];
White JA at [118].Decision: 1. Grant leave to Mr French to amend his notice of appeal to challenge the award of interest.
2. Dispense with the filing of an amended notice of appeal.
3. Allow Mr French’s appeal in part and set aside order 1 of the orders made on 31 October 2019, but otherwise dismiss the appeal.
4. Direct the parties to supply agreed calculations, or in the absence of agreement, calculations for which each contends, of the amount of interest at 5% upon the amounts totalling $3,148,718 lent by Dr Bremner, within 28 days of today, noting that this Court proposes to enter judgment against Mr French on Dr Bremner’s cross-appeal in the amount of $3,148,718 plus interest at the rate of 5%.
5. As against Ms Bakey, refuse leave to extend time within which to bring an appeal against the dismissal of the proceedings brought by Dr Bremner against her, and dismiss the cross-appeal insofar as it is brought against her as incompetent.
6. Order Dr Bremner to pay Ms Bakey’s costs of the cross-appeal.
7. As against Mr French, dismiss Dr Bremner’s cross-appeal.
8. Dismiss the balance of Mr French’s notice of motion filed 30 October 2020.
9. Mr French to pay Dr Bremner’s costs of his notice of motion filed 30 October 2020 to adduce further evidence on appeal.
10. Subject to orders 6 and 9, there be no order as to the costs of the appeal and cross-appeal, with the intention that Mr French and Dr Bremner bear their costs of the appeal and cross-appeal.
Catchwords: CONTRACT – oral contracts concerning debt, joint venture to exploit inventions and rural properties – primary judge rejected claims in contract – no claim advanced in equity for partnership or breach of fiduciary duty – such claim renounced by senior counsel appearing at trial – no error in primary judge declining to address such claim – no error in rejection of oral contracts – appeal dismissed
RESULTING TRUST – presumed resulting trusts – cross-appellant purchased rural lands and placed in joint names of him and first cross-respondent, or in sole name of second cross-respondent – primary judge found presumption of resulting trust rebutted – whether appellable error in so finding – testimonial evidence by cross-respondents – cross-appellant gave no evidence – one cross-respondent not cross-examined on her evidence of beneficial ownership – documents supported rebuttal of presumption – cross-appeal dismissed
Legislation Cited: Civil Procedure Act 2005 (NSW), s 100
Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth), s 7
Partnership Act 1892 (NSW), s 30
Uniform Civil Procedure Rules 2005 (NSW), r 51.17
Cases Cited:
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- AGLC
- French v Bremner; Bremner v French [2020] NSWCA 339
- Case
- [2020] NSWCA 339
- Decision Date
CaseChat Overview and Summary
The legal issues before the Court of Appeal were whether the primary judge had made an error in rejecting Mr French's claims based on alleged oral contracts, and whether the primary judge had erred in finding that the presumption of a resulting trust was rebutted in relation to the rural properties purchased by the cross-appellant and placed in joint names or in the sole name of another party. The court also considered whether an equitable claim for partnership or breach of fiduciary duty, which had been renounced by senior counsel at trial, should have been addressed by the primary judge.
The Court of Appeal found no error in the primary judge's rejection of the oral contracts, noting that no claim in equity for partnership or breach of fiduciary duty was advanced at trial. Regarding the rural properties, the court held that the primary judge's finding that the presumption of a resulting trust was rebutted was supported by testimonial evidence from the cross-respondents and documentary evidence, despite the cross-appellant not giving evidence. The court also noted that one cross-respondent was not cross-examined on her evidence of beneficial ownership.
The Court of Appeal allowed Mr French's appeal in part, setting aside an order concerning the award of interest, but otherwise dismissed the appeal and the cross-appeal. The court proposed to enter judgment against Mr French on Dr Bremner's cross-appeal for a principal sum of $3,148,718 plus interest at 5%. The court also refused leave to extend time for an appeal against the dismissal of proceedings brought by Dr Bremner against Ms Bakey, and dismissed the cross-appeal insofar as it was brought against her. Orders were made regarding the payment of costs and the parties were directed to supply agreed or contended calculations for the interest amount.
Orders
Orders of the court
1. Grant leave to Mr French to amend his notice of appeal to challenge the award of interest.
2. Dispense with the filing of an amended notice of appeal.
3. Allow Mr French’s appeal in part and set aside order 1 of the orders made on 31 October 2019, but otherwise dismiss the appeal.
4. Direct the parties to supply agreed calculations, or in the absence of agreement, calculations for which each contends, of the amount of interest at 5% upon the amounts totalling $3,148,718 lent by Dr Bremner, within 28 days of today, noting that this Court proposes to enter judgment against Mr French on Dr Bremner’s cross-appeal in the amount of $3,148,718 plus interest at the rate of 5%.
5. As against Ms Bakey, refuse leave to extend time within which to bring an appeal against the dismissal of the proceedings brought by Dr Bremner against her, and dismiss the cross-appeal insofar as it is brought against her as incompetent.
6. Order Dr Bremner to pay Ms Bakey’s costs of the cross-appeal.
7. As against Mr French, dismiss Dr Bremner’s cross-appeal.
8. Dismiss the balance of Mr French’s notice of motion filed 30 October 2020.
9. Mr French to pay Dr Bremner’s costs of his notice of motion filed 30 October 2020 to adduce further evidence on appeal.
10. Subject to orders 6 and 9, there be no order as to the costs of the appeal and cross-appeal, with the intention that Mr French and Dr Bremner bear their costs of the appeal and cross-appeal.
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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