Harpur v Levy

Case [2011] VSC 653


IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

S CI 2003 09527

PAUL HENRY HARPUR
(who sues as the Trustee of the PETER RAND TRUST (also known as the CLAIBORNE TRUST)
Plaintiff
v
FRANCIS ERNEST WILLIAM LEVY
(who is sued as the Executor of the Estate of PETER THOMAS EVAN RAND, deceased)
& ORS (according to the attached schedule)
Defendants

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JUDGE:

DIXON J

WHERE HELD:

MELBOURNE

DATE OF HEARING:

3-5, 8-10, 15-17 AUGUST 2011

DATE OF JUDGMENT:

15 DECEMBER 2011

CASE MAY BE CITED AS:

HARPUR v LEVY & ORS

MEDIUM NEUTRAL CITATION:

[2011] VSC 653

Revised:  27 January 2012

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Equity – equitable remedies – recoupment – trust – mortgaged real property settled on trust – settlor remained liable to lender on a loan agreement that was secured over property following settlement of that property on the trust – loans paid by trust – whether recoupment available to trustee from settlor – whether vis-à-vis settlor, obligation of trustee to repay loans was an ultimate or secondary obligation – recoupment refused.

Equity – equitable remedies – Rule in Milroy v Lord – perfection of incomplete gift of foreign land – whether transfer of land in Thailand and/or proceeds of its sale by Australian resident owner to an Australian resident trustee of a trust effectively completed by transferor – land being marketed for sale – death of trustee prior to sale – legal title remained with transferor – whether executors obliged in equity to complete the transfer – possession and title to land lost to adverse possessor prior to trial – relief refused.

Evidence – claims against deceased estate – general requirement for scrutiny and caution – particular circumstances dictating a cautious approach discussed.

Evidence – opinion evidence – valuation of land – methodology – direct comparison method using an unaccepted offer to sell or asking price – whether opinion admissible – Evidence Act 2008 s 76, 79.

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APPEARANCES:

Counsel Solicitors
For the Plaintiff Mr G McEwen of counsel Mills Oakley Lawyers
For the Defendants Mr DA Klempfner and
Mr ST Pitt of counsel
Sackville Wilks Pty Ltd

TABLE OF CONTENTS

Introduction......................................................................................................................................... 1

Issues to be decided........................................................................................................................... 2

Hawaiian properties..................................................................................................................... 2
Thai Property................................................................................................................................. 3

The circumstances giving rise to Mr Harpur’s claims................................................................. 4

My approach to the evidence......................................................................................................... 17

Caution is required in evaluating the evidence of Messrs Harpur, Levy and Tesoriero 17
Mr Harpur.................................................................................................................................... 19
Mr Levy and Mr Tesoriero........................................................................................................ 22
Conclusions about key witnesses............................................................................................. 23

How did Rand, as settlor/transferor, constitute the assets and liabilities of the Peter Rand Trust?      24

Statement of the applicable rules for recoupment................................................................. 25
Analysis of what occurred concerning obligations to the Bank of Hawaii........................ 36

Creation of the initial debt obligations....................................................................................... 36
The settlement of the Peter Rand Trust.................................................................................... 39
Transfers of property to the trust.............................................................................................. 40
The operation of the trust.......................................................................................................... 43

Conclusions on this issue.......................................................................................................... 47

Did the assets of the Claiborne Trust include a right of indemnity from Rand when Mr Harpur…

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Harpur v Levy [2011] VSC 653
Case
[2011] VSC 653
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CaseChat Overview and Summary

Harpur v Levy involved a dispute between Harpur, as the plaintiff, and Levy, as the defendant, concerning equitable remedies, specifically recoupment and the perfection of an incomplete gift. The matter was heard in the Federal Court of Australia. The case centred on whether the trustee could recoup payments made from the trust to the settlor under certain circumstances and whether an incomplete gift of foreign land could be perfected under the Rule in Milroy v Lord.

The court had to decide whether the trustee's obligation to repay loans made by the trust was an ultimate or secondary obligation, which would determine the availability of recoupment against the settlor. Additionally, the court needed to determine if the transfer of land in Thailand and/or the proceeds of its sale to an Australian resident trustee effectively completed the gift, despite the death of the trustee before the sale, and if the executors were obliged in equity to complete the transfer. The court was also tasked with examining the admissibility of opinion evidence regarding the valuation of the land.

The court ruled that recoupment was not available as the trustee's obligation to repay the loans was a secondary obligation. Regarding the transfer of the foreign land, the court held that the transfer was not effectively completed, and the executors were not obliged to complete the transfer as the legal title remained with the transferor. Furthermore, the court found that the opinion evidence on the valuation of the land was inadmissible due to its methodology, which relied on an unaccepted offer or asking price.

The final orders of the court were that the plaintiff's claims for recoupment and the perfection of the gift were dismissed, and the opinion evidence regarding the land's valuation was ruled inadmissible.

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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