MacDonald v Yakiti Pty Ltd

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

MacDonald v Yakiti Pty Ltd & Ors [2021] NSWCA 114

Hearing dates:

12 August 2020

Date of orders:

1 June 2021

Decision date:

01 June 2021

Before:

Macfarlan JA at [1]
White JA at [17]
McCallum JA at [222]

Decision:

Appeal dismissed with costs

Catchwords:

UNCONSCIONABLE CONDUCT — Where appellant excluded from negotiations after admission to hospital — Australian Securities and Investments Commission Act 2001 (Cth), ss 12CA, 12CB — Whether respondents took unconscientious advantage of the appellant’s disabling condition — Australian Securities and Investments Commission Act 2001 (Cth), s 12GM(7) — Whether appellant suffered any compensable loss

Legislation Cited:

Australian Securities and Investments Commission Act 2001 (Cth), ss 12CA,12CB,12GM

Cases Cited:

Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd (2003) 214 CLR 51; [2003] HCA 18

Australian Securities and Investments Commission v Kobelt (2019) 267 CLR 1; [2019] HCA 18

Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447; [1983] HCA 14

Gates v City Mutual Life Assurance Society Limited (1986) 160 CLR 1; [1986] HCA 3

Gooley v NSW Rural Assistance Authority [2020] NSWCA 156

Yakiti Pty Ltd v MacDonald (No 2) [2018] NSWSC 1970

Category:

Principal judgment

Parties:

Kate Marie MacDonald (Appellant)
Yakiti Pty Ltd (First Respondent)
Babak Moini (Second Respondent)
Kon Prin (Third Respondent)

Representation:

Counsel:
G M McGrath (Appellant)
V Bedrossian (Respondents)

Solicitors:
KMD Law & Advisory (Appellant)
Crumpton Lawyers (First and Second Respondents)
CLH Lawyers (Third Respondent)

File Number(s):

2020/4245

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Common Law Division

Citation:

[2019] NSWSC 1772

Date of Decision:

12 December 2019

Before:

Hamill J

File Number(s):

2017/163521

HEADNOTE

[This headnote is not to be read as part of the judgment]

The appellant, Ms MacDonald, borrowed substantial sums from the first respondent, Yakiti Pty Ltd through its sole director and shareholder, the second respondent, Mr Moini.

Those monies were lent to several companies associated with a Mr Henley (the Henley Group), which operated a number of gymnasiums. Mr Moini and a Mr Prin had also lent substantial sums to these companies. By October 2016, the Henley Group was in financial difficulty.

On 31 October 2016, negotiations took place between Ms MacDonald, Mr Moini, Mr Prin and Mr Henley with a view to incorporating a company which was to acquire the assets and businesses of the Henley Group. Ms MacDonald was to advance a further $330,000 to the group such that her contributions roughly equalled those of Mr Moini and Mr Prin combined.

Ms MacDonald was admitted to hospital on 4 November 2016 and not discharged until 13 December 2016. She did not advance the $330,000 which she said that she would by 7 November 2016. In that time, Mr Moini, Mr Prin and Mr Henley continued their negotiations to the exclusion of Ms MacDonald. A number of corporate entities controlled by Mr Moini, Mr Prin and a Mr Huang were…