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Purdon v Purdon

Purdon v Purdon

Case [2007] NSWSC 141 28 February 2007

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CITATION: Purdon v Purdon & Anor [2007] NSWSC 141

HEARING DATE(S): 28/9/06, 20/11/06, 21/11/06, 6/12/06, 11/12/06, 13/12/06

JUDGMENT DATE :
28 February 2007

JUDGMENT OF: Smart AJ at 1

DECISION: See paras 223 & 224

CATCHWORDS: Action in essence one at law - assignment of legal chose in action - rights under guarantee - necessity to serve notice under s 12 Conveyancing Act for assignee to maintain action at law in his own name - Failed business venture - Fiduciary Duties - Unjust enrichment - Contribution - Transfer with intent to defraud creditors

LEGISLATION CITED: Civil Procedure Act 2005
Conveyancing Act 1919
Crimes (Sentencing Procedure) Act 1999
English Judicature Act 1873
Supreme Court Rules

CASES CITED: Baldry v Jackson (1976) 2 NSWLR 415
Biala Pty Ltd & Ors v Mallina Holdings & Ors (No 4) (1994) 13 WAR 11
Blomley v Ryan (1954-1956) 99 CLR 362
Comptroller of Stamps (Vic) v Howard-Smith (1936) 54 CLR 614
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 81 ALJR 352
Dering v Earl of Winchelsa (1787) 29 ER 1184
Distronics Ltd v Edmond 2002 VSC 454
Loxton v Moir (1914) 18 CLR 360
Mahoney v McManus 180 CLR 370
McDonald v Lloyd (1931) 31 SR (NSW) 415
McIntosh v Shashou (1931) 46 CLR 494
Norman v Commissioner of Taxation (1963) 109
CLR 9
Phipps v Boardman [1967] 2 AC 46
Re Caratti Holding Co Pty Limited (1975) 1 ACLR 87
Talcott (James) Ltd v Lewis (John) Co Ltd 1940 3 All ER 592
Tanwar Enterprises Pty Limited v Cauchi (2003) 77 ALJR 1853
Torkington v McGee [1902] 2 KB 427
United Dominions Corporation Ltd ("UDC") v Brian Pty Ltd & Ors (1985) 157 CLR 10-11

PARTIES: John Wentworth Purdon v Steven Purdon & David Webb

FILE NUMBER(S): SC 3548/05

COUNSEL: (P) F Kalyk
(D1) G Segal

SOLICITORS: (P) Kemp Strang
(D1) Segal & Associates

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

SMART AJ

Wednesday, 28 February 2007

JUDGMENT

1 This case evolves out of a bitter dispute between two obstinate brothers relating to the conduct of a failed business. Neither of the brothers was entirely truthful or honest. This has complicated the findings of fact. Mr Daniel Webb was not an active party although he gave evidence. He was joined because the legal title to a property at 39A Raimonde Road, Eastwood, stands in his name. Formerly, SP was the registered proprietor. It was not in dispute that despite the transfer of the property into the name of David Webb, SP was the beneficial owner.

2 JP and SP decided to go into business together. Putting the form of the arrangements to one side, they decided to operate the business of a Burger King fast food outlet at 162 Burwood Road, Burwood. On 4 June 1999 SP and JP acquired a company now known as Span Management Pty Limited (Span). About 16 February 2000 Span entered into an agreement to lease the premises. A considerable amount of…

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 Purdon v Purdon

Details

AGLC: Purdon v Purdon [2007] NSWSC 141
Case: [2007] NSWSC 141
Decision Date: 28 February 2007

CaseChat Overview and Summary

The case of Purdon v Purdon involved a legal dispute between the parties concerning the assignment of a legal chose in action and the rights under a guarantee. The dispute arose from a failed business venture, and the court was required to determine whether the assignment of the guarantee was valid and whether the assignee could maintain an action at law in their own name without serving notice under section 12 of the Conveyancing Act. Additionally, the court had to examine the fiduciary duties of the parties, any instances of unjust enrichment, and whether there was a right to contribution between the parties.

The court examined whether the assignment of the guarantee was valid, considering the necessity of serving notice under section 12 of the Conveyancing Act for the assignee to maintain an action at law in their own name. The court also considered whether the assignee had breached any fiduciary duties owed to the assignor and whether there was any unjust enrichment by either party. Furthermore, the court evaluated the possibility of a right to contribution between the parties, particularly in light of the transfer of assets with the intent to defraud creditors.

In determining the issues, the court found that the assignment of the guarantee was valid and that the assignee could maintain an action at law in their own name without serving notice under section 12 of the Conveyancing Act. The court held that there were no breaches of fiduciary duty by the assignee and found no unjust enrichment by either party. The court also concluded that there was no right to contribution between the parties in the circumstances of the case, particularly given the transfer of assets with the intent to defraud creditors.

The court ordered that the assignee could maintain the action at law in their own name and that there were no breaches of fiduciary duty or unjust enrichment by either party. Additionally, the court ruled that there was no right to contribution between the parties. The court's decision provided clarity on the validity of the assignment, the assignee's ability to maintain an action at law, and the absence of any right to contribution between the parties.

Orders