Supreme Court
New South Wales
Medium Neutral Citation: Lorebray Pty Ltd v Liddy (No 2) [2024] NSWSC 1020 Hearing dates: 5-6 August 2024 Decision date: 15 August 2024 Jurisdiction: Equity - Real Property List Before: Peden J Decision: See [76]
Catchwords: CONTRACTS — Formation — Agreement — Whether advances made by corporate trustee to first defendant a loan or gift
Cases Cited: CBRE (V) Pty Ltd v City Pacific Ltd (in liq) [2022] NSWCA 54
Heydon v Perpetual Executors, Trustees and Agency Co (WA) Ltd (1930) 45 CLR 111
Jones v Dunkel (1959) 101 CLR 298
Lorebray Pty Ltd v Liddy [2022] NSWSC 1633
Righi v Kissane Family Pty Ltd [2015] NSWCA 238
Schmierer v Taouk [2004] NSWSC 345
Category: Principal judgment Parties: Lorebray Pty Ltd (First Plaintiff)
Peter John McNamee (Second Plaintiff)
Stephen John McNamee (Third Plaintiff)
John Christopher McNamee (Fourth Plaintiff)
Philippa Margaret Hardy (Fifth Plaintiff)
Christine Liddy (First Defendant)
William John McNamee (Second Defendant)
Sally-Jane Margaret Collignon (Third Defendant)Representation: Counsel:
Solicitors:
M Condon SC and H Rogers (Plaintiffs)
G O'Mahoney and A Flick (First Defendant)
Garland Hawthorn Brahe (First Plaintiff)
Swan Lawyers (Second to Fifth Plaintiffs)
Gilbert + Tobin (First Defendant)
Henry William Lawyers (Second and Third Defendants)
File Number(s): 2019/00395533 Publication restriction: Nil
Judgment
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This case concerns an unhappy, long-standing dispute between the McNamee siblings. They are the children of the late John McNamee Senior, who died on 17 July 2021, and Margaret McNamee, who is 99 years old. The siblings are fighting over their parents’ accumulated wealth.
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Christine Liddy is the eldest child. Of Christine’s six younger siblings, two have sided with her, namely William McNamee and Sally Collignon. Christine’s other four siblings, Peter McNamee, Stephen McNamee, John McNamee (John Junior), and Philippa Hardy claim that Christine is liable to repay $1,250,000 to the first plaintiff, Lorebray Pty Ltd, the trustee of a family trust, the McNamee Property Trust.
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Christine accepts she received $1,250,000 advanced to her in two instalments by another family trustee company, J & M McNamee Holdings Pty Ltd, the trustee of the Red Hill Property Trust. On 16 December 2013, $250,000 was advanced, and on 18 March 2015, $1,000,000 was advanced. The plaintiffs’ claim in relation to some other advances made to Christine in 2013 have been withdrawn on the basis that the limitation period has lapsed.
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At the time of the payments in dispute and up until recently, both trustee companies were controlled by their parents, and there is no dispute that the payments were made at the direction of their parents. The plaintiff siblings were granted leave to continue the proceedings on behalf of Lorebray: Lorebray Pty Ltd v Liddy [2022] NSWSC 1633 at [70]; see also [45]–[47] (Henry J).
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Christine accepts that she received the payments, but defends the claim and cross-claims on the basis that the advances were gifts. If the advances were gifts,…
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- Case
- [2024] NSWSC 1020
- Decision Date
CaseChat Overview and Summary
The legal issues before the court encompassed the interpretation of the agreements between the parties and the characterisation of the financial transactions. It was necessary to examine the terms of the written and oral agreements, the conduct of the parties, and any relevant precedent to ascertain the true nature of the financial exchanges. The court also needed to consider whether the context and circumstances surrounding the transactions could lead to a conclusion that the advances were intended as gifts, despite the absence of formal gift documentation.
The court meticulously reviewed the evidence and the arguments presented by both parties. It found that the conduct of the parties and the context of the transactions suggested that the advances were not intended as gifts. The court emphasised that the absence of a formal gift document, coupled with the fact that the plaintiff had consistently treated the transactions as loans, indicated that the parties had intended a loan agreement. The court concluded that the financial advances were loans and not gifts, thereby rejecting the first defendant's argument. As a result, the court ordered that the first defendant repay the outstanding amount to the plaintiff, along with interest.
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Evidence
Evidence Before The Court
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Ratio Decidendi
Legal Principle Established
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