Medium Neutral Citation: French v Bremner [2019] NSWSC 1033
Hearing dates: 6, 7, 8, 9, 10, 13, 14, 15 and 16 May 2019
Date of orders: 15 August 2019
Decision date: 15 August 2019
Jurisdiction: Equity - Commercial List
Before: Parker J
Decision:
See [474]-[477].

Catchwords:
EVIDENCE — Hearsay — Exceptions — First-hand hearsay exceptions – Evidence Act 1995 (NSW), s 63 – application to tender draft affidavit where witness refused to answer questions – adequacy of s 67 notice – whether document “marked” by witness where witness amended draft affidavit and returned by email – whether representation “made” by attaching draft affidavit to email – whether evidence should be excluded under s 135.

CONTRACTS — Formation – whether one party agreed to “buy” other party’s mortgage – whether party breached agreement by failure to indemnify other party against mortgagee’s claim for funds owing.

CONTRACTS — Formation – alleged agreement by one party to undertake European joint venture to exploit a second party’s magnetic coupling invention – incompleteness – parties had not reached concluded agreement on terms of licensing of intellectual property or identity of shareholders – parties to alleged agreement not correctly joined to proceedings.

CONTRACTS — Formation – whether one party agreed for a second party to manage and maintain certain properties acquired with the first party’s funds.

EQUITY — Trusts and trustees — Resulting trusts – whether one party entitled to resulting trusts over properties registered in second party’s name where first party advanced substantial portion of purchase price – presumption of resulting trust rebutted.
LAND LAW — Co-ownership — Statutory trust for sale — Appointment of trustees – jurisdiction of Supreme Court of New South Wales – appointment of trustees for sale pursuant to Property Law Act 1958 (Vic), Part IV.
Legislation Cited: Evidence Act 1995 (NSW), ss 55, 63, 63(2)(a), 67, 135, Dictionary cl 6
Jurisdiction of Courts (Cross-Vesting) Act 1987 (Vic), ss 4(3), 234C
Jurisdiction of Court (Cross-Vesting) Act 1987 (NSW), s 9(a)
Property Law Act 1958 (Vic), Part IV, ss 225, 231, 234C.
Cases Cited: Attorney-General (NT) v Maurice (1986) 161 CLR 475; [1986] HCA 80
Calverley v Green (1984) 155 CLR 242
Caterpillar Inc v John Deere Ltd (No 2) [2000] FCA 1903
Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303; [2013] HCA 46
Great Atlantic Insurance Co. v Home Insurance Co [1981] 2 All ER 485; [1981] 1 WLR 529
Mindshare Communications Ltd v Orleans Investment Pty Ltd [2007] NSWSC 976
Nichia Corporation v Arrow Electronics Australia Pty Ltd (No 3) [2016] FCA 466
Sellars v Adelaide Petroleum NL; Poseidon Ltd v Adelaide Petroleum NL (1994) 179 CLR 332
TCN Channel 9 Pty Ltd v Hayden Enterprises Pty Ltd (1989) 16 NSWLR 130
Tory v Tory [2007] NSWSC 1078
Vairy v Wyong Shire Council (2005) 223 CLR 422
Watson v Foxman (1995) 49 NSWLR 315
Texts Cited: J C Campbell QC, “The…

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 French v Bremner

Details

AGLC: French v Bremner [2019] NSWSC 1033
Case: [2019] NSWSC 1033
Decision Date: 15 August 2019

CaseChat Overview and Summary

French v Bremner was a case before the Supreme Court of New South Wales, where the primary dispute centred around the validity and interpretation of several contractual agreements and the existence of resulting trusts over certain properties. The plaintiff, French, alleged that the defendant, Bremner, had entered into various agreements, including an agreement to purchase a mortgage, to form a joint venture to exploit an invention, to manage and maintain certain properties, and to establish resulting trusts over properties purchased with French’s funds. Additionally, French sought the appointment of trustees for the sale of certain properties under the Property Law Act 1958 (Vic).

The court was required to determine several legal issues, including whether the agreements were properly formed, whether there was a breach of contract, and whether the evidence provided, including a draft affidavit, could be admitted under the exceptions to the hearsay rule in the Evidence Act 1995 (NSW). The court also needed to decide whether the parties to the alleged agreements were correctly joined to the proceedings and whether the presumption of a resulting trust was rebutted.

In its reasoning, the court found that several of the agreements were not properly formed due to incomplete terms and the absence of the correct parties in the proceedings. Regarding the draft affidavit, the court held that the document was not "marked" by the witness as required by the Evidence Act, as the witness had amended the draft and returned it by email without explicitly indicating it was their representation. Consequently, the court ruled that the draft affidavit could not be admitted as evidence. The court further found that the evidence of the agreements was insufficient to establish the existence of a resulting trust over the properties in question.

The court’s final orders included dismissing French’s claims regarding the purchase of the mortgage, the joint venture agreement, the management and maintenance agreement, and the resulting trusts. The court also declined to appoint trustees for the sale of the properties under the Property Law Act 1958 (Vic) due to the absence of the necessary parties.

Orders