POWERS & ANOR -v- HAYES & ORS [2001] WASC 277

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2001] WASC 277
Case No:	CIV:2251/1998	Heard:	20-23 AUGUST 2001
Coram:	WHITE AUJ	Delivered:	10/10/01
No of pages:	28	Judgment Part:	1 of 1
Result:	Declaration that Deed is binding and should be performed
Category:	B
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Parties:	ALAN JOHN POWERS SHEILA POWERS COLIN ROBERT HAYES DAVID ROBERT PRICE IMAGINATION ENTERPRISES PTY LTD
Catchwords:	Contract Deed of Declaration of Trust Whether refusal to perform obligations under such a Deed justified by alleged repudiation of other agreements Turns on own facts
Legislation:	Nil
Case References:	Jones v Dunkel (1959) 101 CLR 298 Re Inkson's Trusts (1855) 21 Beav 310; 52 ER 878 Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : POWERS & ANOR -v- HAYES & ORS [2001] WASC 277 CORAM : WHITE AUJ HEARD : 20-23 AUGUST 2001 DELIVERED : 10 OCTOBER 2001 FILE NO/S : CIV 2251 of 1998 BETWEEN : ALAN JOHN POWERS

First Plaintiff

SHEILA POWERS

Second Plaintiff

AND

COLIN ROBERT HAYES

First Defendant

DAVID ROBERT PRICE

Second Defendant

IMAGINATION ENTERPRISES PTY LTD

Third Defendant

Catchwords:

Contract - Deed of Declaration of Trust - Whether refusal to perform obligations under such a Deed justified by alleged repudiation of other agreements - Turns on own facts

(Page 2)

Legislation:

Nil

Result:

Declaration that Deed is binding and should be performed

Category: B

Representation:

Counsel:

First Plaintiff : Mr C L Caine

Second Plaintiff : Mr C L Caine

First Defendant : No appearance

Second Defendant : Mr D R Clyne

Third Defendant : No appearance

Solicitors:

First Plaintiff : Corrin Caine

Second Plaintiff : Corrin Caine

First Defendant : No appearance

Second Defendant : Tottle Christensen

Third Defendant : No appearance

Case(s) referred to in judgment(s):

Jones v Dunkel (1959) 101 CLR 298
Re Inkson's Trusts (1855) 21 Beav 310; 52 ER 878

Case(s) also cited:

Nil

(Page 3)

1 WHITE AUJ: This is an action in which the parties who are still concerned are the plaintiffs ("Mr and Mrs Powers"), the second defendant ("Mr Price") and the third defendant ("the Company"). The plaintiffs' claims against the first defendant ("Mr Hayes") have been settled as will appear hereunder. I set out below the facts I find to have been established.

Findings of facts

2 In September 1988, Mr Hayes and Mr Price were the two directors of, and the two shareholders in, the Company that was the corporate trustee of the Denmark Unit Trust ("the Trust"). Each held two of the four issued shares in the Company. In addition, each of Mr Hayes and Mr Price held 10 units in the Trust.

3 In November 1988, the Company purchased 33 hectares of land at a purchase price of $42,500 which amount, together with the stamp duty on transfer and the conveyancing costs in connection with that purchase, was paid by Mr Price.

4 In May 1990, there was a meeting attended by Mr Hayes,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Powers v Hayes

Details

AGLC: Powers v Hayes [2001] WASC 277
Case: [2001] WASC 277
Decision Date

CaseChat Overview and Summary

In the Supreme Court of Western Australia, the case of Powers v Hayes involved a dispute between the plaintiffs, Mr. and Mrs. Powers, and the defendant, Mr. Price. The plaintiffs sought a declaration that a Deed of Declaration of Trust, which they had signed, was binding and should be performed. Mr. Price, on the other hand, contended that the agreement was void due to his bankruptcy and sought relief based on alleged breaches of agreement by the plaintiffs. The court found that the Deed of Declaration of Trust was indeed binding and that the plaintiffs were obligated to perform their obligations under it. The court also noted that the plaintiffs' claims of breaches by Mr. Price appeared to be fabricated, and therefore, the plaintiffs were found to be generally unconvincing witnesses. The court granted a declaration that the Deed of Declaration of Trust was binding and should be performed by the plaintiffs, with costs to follow the event.

Orders