Mitzev v Foxman

Case [2007] NSWCA 273

New South Wales


Court of Appeal


CITATION: MITZEV v FOXMAN [2007] NSWCA 273
HEARING DATE(S): 25 September 2007
 
JUDGMENT DATE: 
5 October 2007
JUDGMENT OF: Tobias JA at 1; McColl JA at 2; Basten JA at 3
DECISION:

(1) Allow the appeal and set aside orders 1, 4 and 5, made in the Equity Division on 14 December 2006.

(2) Order that the Respondent pay to the Appellant the sum of $50,405.18, or such other amount as was received by the Respondent from the trustee for sale, upon sale of the property, together with interest thereon from the date on which the proceeds of sale were obtained by the trustee until the date of payment to the Appellant, such interest to be calculated in accordance with the rate prescribed in Schedule 5 of the Uniform Civil Procedure Rules.

(3) Order that the Respondent pay the Appellant’s costs in this Court and in the Court below.

(4) Grant the Respondent a certificate under the Suitors’ Fund Act 1951 (NSW) in respect of the appeal.
CATCHWORDS:

CONVEYANCING – vendor’s lien – vendor requested “Credex dollars” as part payment for sale of property – whether “Credex” trading scheme was in operation at time of sale – whether valuable consideration given by purchaser

CORPORATIONS – deregistered corporation restored to register – effect of restoration – Corporations Act 2001 (Cth) s 601AH

REAL PROPERTY – indefeasibility of title – personal equities – effect of vendor’s lien
LEGISLATION CITED: Corporations Act 2001 (Cth), s 601AH
Real Property Act 1900 (NSW), ss 42, 43
CASES CITED: Ambulance Service of New South Wales v Worley (No. 2) [2006] NSWCA 236
Aronis v Hallett Brick Industries Ltd [1999] SASC 92
Bahr v Nicolay (1988) 164 CLR 604
Breskvar v Wall (1971) 126 CLR 376
CGU Workers Compensation (NSW) Ltd v Rockwall Interiors Pty Ltd [2006] NSWSC 690, (2006) 201 FLR 296
GIO General Ltd v Sabko Pty Ltd [2007] NSWSC 251; (2007) 25 ACLC 935
Heydon v NRMA Ltd (No. 2) (2001) 53 NSWLR 600
IAC (Finance) Pty Ltd v Courtenay (1963) 110 CLR 550
Logue v Shoalhaven Shire Council [1979] 1 NSWLR 537
Mercantile Mutual Life Insurance Co Ltd v Gosper (1991) 25 NSWLR 32
Reliance Finance Corporation Pty Ltd v Heid [1982] 1 NSWLR 466
Tilley v Official Receiver in Bankruptcy (1960) 103 CLR 529
White v Baycorp Advantage Business Information Services Ltd [2006] NSWSC 441; (2006) 200 FLR 125
PARTIES: Assen Atanasov MITZEV – Appellant
Marsha FOXMAN – Respondent
FILE NUMBER(S): CA 40040/07
COUNSEL: V. Bedrossian – Appellant
L.S. Einstein - Respondent
SOLICITORS: Lynden E Hopper & Co, Dee Why – Appellant
Coustas & Co, Bankstown - Respondent
LOWER COURT JURISDICTION: Supreme Court
LOWER COURT FILE NUMBER(S): SC 2280/06
LOWER COURT JUDICIAL OFFICER: Hamilton J
LOWER COURT DATE OF DECISION: 8 December 2006
LOWER COURT MEDIUM NEUTRAL CITATION: Foxman v Mitzev [2006] NSWSC 1404




                          CA 40040/07
                          SC 2280/06

                          TOBIAS JA
                          McCOLL JA
                          BASTEN JA

                          5 October 2007
Assen Atanasov MITZEV v Marsha FOXMAN

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AGLC
Mitzev v Foxman [2007] NSWCA 273
Case
[2007] NSWCA 273
Decision Date

CaseChat Overview and Summary

In *Mitzev v Foxman*, the Court of Appeal of New South Wales considered a dispute concerning the payment of part of the purchase price for a property. The vendor, Mr. Foxman, had requested that the purchaser, Mr. Mitzev, provide "Credex dollars" as part payment. The central issue was whether the "Credex" trading scheme was operational at the time of the sale and whether valuable consideration had been provided by the purchaser.

The court was required to determine whether the purported payment of "Credex dollars" constituted valid consideration for the sale of the property. This involved assessing the nature of the "Credex" scheme and whether it was a legitimate form of currency or consideration at the relevant time. The court also had to consider the implications of the scheme's operational status on the vendor's obligations and the purchaser's entitlement to the proceeds of sale.

The Court of Appeal allowed the appeal, setting aside previous orders made by the Equity Division. The court ordered that the respondent pay to the appellant the sum of $50,405.18, or any other amount received by the respondent from the trustee for sale upon the property's sale, along with interest. The respondent was also ordered to pay the appellant's costs in both the Court of Appeal and the court below, and was granted a certificate under the Suitors’ Fund Act 1951 (NSW) in respect of the appeal.

Orders

Orders of the court

(1) Allow the appeal and set aside orders 1, 4 and 5, made in the Equity Division on 14 December 2006.

(2) Order that the Respondent pay to the Appellant the sum of $50,405.18, or such other amount as was received by the Respondent from the trustee for sale, upon sale of the property, together with interest thereon from the date on which the proceeds of sale were obtained by the trustee until the date of payment to the Appellant, such interest to be calculated in accordance with the rate prescribed in Schedule 5 of the Uniform Civil Procedure Rules.

(3) Order that the Respondent pay the Appellant’s costs in this Court and in the Court below.

(4) Grant the Respondent a certificate under the Suitors’ Fund Act 1951 (NSW) in respect of the appeal.

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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