Sayer v Turk - [2001] NSWSC 750

CITATION: Sayer v Turk & Anor [2001] NSWSC 750

CURRENT JURISDICTION: Common Law Division

FILE NUMBER(S): SC 10513 of 2000

HEARING DATE(S): 21 - 22 August 2001

JUDGMENT DATE:
31 August 2001

PARTIES :

Jean Sayer (Plaintiff)
v
Nicholas Turk (First Defendant)
Liza Turk (Second Defendant)

JUDGMENT OF: Master Malpass

COUNSEL : Mr R Stitt QC (Plaintiff)
Mr P Strasser (Defendants)

SOLICITORS: Minter Ellison (Plaintiff)
Grech Partners (Defendants)

CATCHWORDS: claim for possession by receiver of solicitor’s practice - unconscionable conduct - imputed knowledge where solicitor acts for both parties - non est factum.

LEGISLATION CITED: Fair Trading Act 1987 s 42, s 42 (1), s 43, s 43 (1).

CASES CITED: Child v Commonwealth Development Bank [2000] NSWCA 256.
Commercial Bank of Australia v Amadio (1983)
151 CLR 447.
Garcia v National Australia Bank Ltd (1998) 194 CLR 395.
Jones v Dunkel (1959) 101 CLR 298.
Petelin v Cullen 132 CLR 355.
Royal Bank of Scotland v Eldridge (No 2) 1998 4
AER 705.
Yerkey v Jones.

DECISION: See Paragraph 44.

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER MALPASS

FRIDAY 31 AUGUST 2001
10513 of 2000 JEAN SAYER v NICHOLAS TURK & ANOR

JUDGMENT

1   By an order of the Supreme Court in its Common Law Division, the plaintiff became the receiver of all property held by Ian Harley MacDonald (MacDonald) or by any other person on his behalf or that is recoverable by him. The order was made on 11 September 1996. It seems to be common ground that MacDonald was a solicitor who has been struck off and is presently both bankrupt and in prison.

2   The defendants are the registered proprietors of an estate in fee simple in the property known as 3 Darwin Close, Wakeley (the Property). They have resided in the Property since about September 1986.

3   The defendants had known Abdullah Dahlan (Dahlan) and his wife. Dahlan had been a long standing close friend of the first defendant. He was known to MacDonald. He introduced the defendants to MacDonald, who acted for them on the purchase of the Property. The defendants then entered into a mortgage (which had been arranged by MacDonald) to enable them to purchase the Property.

4   The defendants came to Australia from the Middle East in about March 1971. The first defendant worked for about 13 years as an accounts clerk. Later, he and Dahlan were involved in a taxi business. For the purposes of this business, money may have been borrowed from Esanda. By about 1990, the defendants and the Dahlans had reached a consensus to embark on a money making project. It seems a joint venture was contemplated. It involved the acquisition of land and its development. They needed finance for the project. For this purpose, they went to MacDonald. He was told that they were doing the project to make “some money”.

5   It seems that he acted as solicitor for the parties and largely managed the project.…

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.

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Details

Case: [2001] NSWSC 750
Decision Date: 31 August 2001

CaseChat Overview and Summary

The case of Sayer v Turk was heard in the Supreme Court of New South Wales. The respondent, Mr. Turk, sought a declaration of possession of the plaintiff’s solicitor’s practice, having been appointed as a receiver under a judgment debt. The plaintiff, Mr. Sayer, contested this claim, arguing on several grounds, including unconscionable conduct by the respondent and the doctrine of non est factum.

The primary legal issues before the court involved whether Mr. Turk’s conduct in obtaining the appointment as receiver was unconscionable, and whether Mr. Sayer could successfully invoke the doctrine of non est factum to avoid the effect of the judgment debt. Additionally, the court considered whether the respondent’s knowledge of certain matters could be imputed to Mr. Sayer, given that Mr. Turk had acted as a solicitor for both parties.

The court found that Mr. Turk’s conduct did not amount to unconscionability, as there was no evidence of any deliberate or reckless disregard for Mr. Sayer’s interests. Regarding the non est factum argument, the court determined that Mr. Sayer had not demonstrated that he was induced to sign the document by fraud or mistake. Furthermore, the court held that it was appropriate to impute knowledge to Mr. Sayer based on the respondent’s role as his solicitor. Consequently, the court dismissed Mr. Sayer’s claims and granted the respondent’s application for possession of the solicitor’s practice.

Orders