Supreme Court
New South Wales
- Summary available
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 315Texts Cited: J C Campbell QC, “The…
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- AGLC
- French v Bremner [2019] NSWSC 1033
- Case
- [2019] NSWSC 1033
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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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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