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Simonson Properties Pty Ltd v Hardy

Simonson Properties Pty Ltd v Hardy

Case [2014] NSWSC 229 14 March 2014

Resulting Trust

Assignment of Equitable Interest

Ownership of Personal Property

Trusts & Equity

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Supreme Court

New South Wales

Medium Neutral Citation: Simonson Properties Pty Limited v Bruce Lachlan Hardy and Anor [2014] NSWSC 229
Hearing dates: 24, 25, 26 February 2014
Decision date: 14 March 2014
Jurisdiction: Equity Division
Before: Sackar J
Decision:
See paragraphs 152 and 153

Catchwords:
EQUITY - trusts and trustees - express trust - resulting trust - whether trust arises on basis of custom and practice within family business - whether clear expression of intention

EQUITY - assignment - where insufficient evidence relating to purported assignment - whether statutory provision prevents assignment of equitable interest - whether writing requirements satisfied - whether clear intention to make an immediate disposition
PERSONAL PROPERTY - ownership and possession - nature and meaning of ownership of and property in personalty - acquisition of ownership of chose in action - evidence of ownership - where lack of records - where physical property remains property of the State
Legislation Cited: Conveyancing Act 1919 (NSW)
Corporations Act 2001 (Cth)
Limitation Act 1969 (NSW)
Road Transport Act 2013 (NSW)
Road Transport (Vehicle Registration) Act 1997 (NSW)
Road Transport (Vehicle Registration) Regulation 1998 (NSW)
Cases Cited: Adamson v Hayes (1973) 130 CLR 276
Alexander v Webber [1922] 1 KB 642
Ali v Nationwide News Pty Ltd [2008] NSWCA 183
Bahr v Nicolay (No 2) (1988) 164 CLR 604
Barnes v Addy (1874) LR 9 Ch App 244
Byrnes v Kendle (2011) 243 CLR 253
Camellia Properties Pty Ltd v Wesfarmers General Insurance Ltd [2013] NSWSC 1975
Commercial Union Assurance Company of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389
Commissioner of Taxation v Linter Textiles Australia (in liquidation) (2005) 220 CLR 592
Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd (1986) 160 CLR 226
Cubillo v Commonwealth of Australia [2000] FCA 1084; (2000) 174 ALR 97
Devefi Pty Ltd v Mateffy Pearl Nagy Pty Ltd (1993) 113 ALR 225
DKLR Holding Co (No 2) Pty Ltd v Commissioner of Stamp Duties (NSW) [1980] 1 NSWLR 510
Dobbs v National Bank of Australasia Ltd (1935) 53 CLR 643
Dyer v Dyer (1788) 30 ER 42
FAI Traders Insurance Co Ltd v ANZ McCaughan Securities Ltd (1990) 3 ACSR 279
Federal Commissioner of Taxation v Everett (1980) 143 CLR 440
Flack ν Chairperson, National Crime Authority (1997) 150 ALR 153
Fowkes v Pascoe (1875) 10 Ch App 343
Gatward v Alley (1940) 40 SR (NSW) 174
Hung v Warner, in the matter of Bellpac Pty Ltd (receivers and managers appointed) (in liquidation) [2013] FCAFC 48
Jones v Canavan (1972) 2 NSWLR 236
Jones v Dunkel (1959) 101 CLR 298
Kauter v Hilton (1953) 90 CLR 86
Kent v The Vessel 'Maria Luisa' (No 2) (2003) 130 FCR 12
King v Victoria Insurance Co Ltd [1896] AC 250
Linden Gardens Trust Ltd v Lenesta Sludge Disposals Ltd [1994] 1 AC 85; [1993] 3 All ER 417
Napier v Public Trustee (1980) 32 ALR 153
Neilson v Letch (No 2) [2006] NSWCA 254
Norman…

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 Simonson Properties Pty Ltd v Hardy

Details

AGLC: Simonson Properties Pty Ltd v Hardy [2014] NSWSC 229
Case: [2014] NSWSC 229
Decision Date: 14 March 2014

CaseChat Overview and Summary

Simonson Properties Pty Ltd was the plaintiff in a case against Hardy, the defendant, where the dispute centred on the nature and extent of property interests held by Hardy in relation to shares in a family company. The case was heard in the Supreme Court of New South Wales. The plaintiff sought to establish whether Hardy held any shares in the company on a trust for the plaintiff and whether the purported assignment of a chose in action to Hardy was valid.

The court had to determine two primary legal issues. Firstly, whether a trust arose on the basis of custom and practice within the family business, requiring a clear expression of intention to create such a trust. Secondly, whether the statutory provision preventing the assignment of an equitable interest was satisfied, considering the evidence of the purported assignment and whether it complied with the requirements for an immediate disposition.

The court examined the evidence and found that there was no clear expression of intention to create a trust based on the custom and practice within the family business. Consequently, no trust was established. Regarding the assignment, the court held that there was insufficient evidence to support the claim that an assignment of a chose in action occurred. Furthermore, the statutory provision preventing the assignment of an equitable interest was not satisfied, as the writing requirements were not met, and there was no clear intention to make an immediate disposition. The court concluded that the physical property in question remained the property of the State.

The court's decision resulted in an order that Hardy held no shares in the company on trust for Simonson Properties Pty Ltd and that the purported assignment of a chose in action was invalid. Consequently, Simonson Properties Pty Ltd was not entitled to any relief against Hardy concerning the shares or the chose in action.

Orders