Mirzikinian v Tom & Bill Waterhouse Pty Ltd

The appeal concerned a dispute between Mirzikinian (the appellant) and Tom & Bill Waterhouse Pty Ltd (the respondent) regarding a deed that acknowledged an indebtedness of $250,000. The appellant had placed bets with Mr. Waterhouse, who was a licensed bookmaker, and incurred this debt. The appellant argued that the deed was not validly delivered, was delivered in escrow, or was illegal. The case was heard in the Court of Appeal of the Supreme Court of New South Wales.

The primary legal issues before the court were whether the deed was validly delivered as a deed, whether it was delivered in escrow, and whether the deed was illegal. Specifically, the court had to determine if the appellant intended to execute the deed as his deed, if the acknowledgment of indebtedness and undertaking to pay were unconditional, and if the deed could be construed as having been delivered in escrow. The court also considered whether the respondent, who was not licensed when performing bookkeeping services, rendered the debts incurred illegal, and whether the deed had expired or been revoked by the appellant before its conditions were fulfilled.

The Court of Appeal, comprising Ipp, Tobias, and McColl JJA, dismissed the appeal. The court reasoned that the appellant's argument based on illegality failed, as there was nothing in the deed inconsistent with the services having been performed by a person whose claim had been assigned to the respondent. Furthermore, the court found that the circumstances established the deed was not delivered in escrow and that the appellant's acknowledgment of indebtedness and undertaking to pay were unconditional. The court also held that the appellant could not revoke the deed, and the mere lapse of time before the respondent's execution did not allow the appellant to renounce it.

Leave to appeal was granted, but the appeal was dismissed with costs. The $250,000 paid by the appellant into court as security for the judgment debt was ordered to be paid to the respondent, subject to a 14-day stay. The entitlement to interest on this sum was to be decided in the District Court.