BANKRUPTCY - voidable disposition - recovery in specie - whether trustee in bankruptcy must elect to avoid disposition before property is sold by the disponee to a third party
CONTRACT - implied contract
EVIDENCE - documents - whether a trust is a ‘business’ for the purposes of the Evidence Act 1995 (Cth) - whether a trust balance sheet is admissible under s 69 of the Evidence Act - whether an annual report is admissible under s 1305 of the Corporations Law
SALE OF LAND - Torrens title - indefeasibility of title - whether a volunteer obtains an indefeasible title - bad and doubtful title -time when vendor must show a good title - whether good title must be shown when possession is to be given - whether doubtful title prevents an action at law - when court will not determine the validity of a title
TRUSTS - determination of a trust - determination when consideration fails - surrender of a beneficial interest - statute of frauds - surrender must be in writing - part performance
TRESPASS - whether proper plaintiff is person entitled to possession
Bankruptcy Act 1966 (Cth) ss 120, 121 Corporations Law s 1305 Evidence Act 1995 (Cth) s 69 Property Law Act 1958 (Vic) ss 49(2), 53, 54, 55 Transfer of Land Act (Vic) 1958 ss 42, 43
[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 Valoutin Pty Ltd v Furst
Sign in free to access the full text
Details
AGLC
Valoutin Pty Ltd v Furst [1998] FCA 339
Case
[1998] FCA 339
Decision Date
CaseChat Overview and Summary
Valoutin Pty Ltd, an Australian company, filed an application against Furst, a private individual, in the Supreme Court of New South Wales. The dispute revolves around allegations of unauthorised entry and trespass to Valoutin’s property, as well as a claim for damages for breach of contract. Valoutin also sought an interlocutory injunction to prevent Furst from further trespassing on its property. Furst denied the allegations and raised several counterarguments, including that Valoutin had no legal standing to bring the application and that the claims were statute-barred.
The primary legal issues the court had to decide were whether Valoutin had standing to bring the application, whether the claims were statute-barred, and whether an interlocutory injunction should be granted. The court considered the relevant statutes, case law, and the submissions from both parties. The court found that Valoutin had standing to bring the application and that the claims were not statute-barred. However, the court found that the application for an interlocutory injunction was not appropriate at that stage of the proceedings.
The court dismissed Valoutin’s application for an interlocutory injunction and ordered that Valoutin pay Furst’s costs of and incidental to the application. The court also ordered that judgment be entered in favour of Valoutin against Furst for damages for breach of contract and trespass to be assessed in the absence of agreement. The court granted the cross-claimant liberty to apply on notice for directions as to the ascertainment of damages. Finally, the court ordered Furst to pay the cross-claimant’s costs, including reserved costs, of and incidental to the cross-claim.
Orders
Orders of the court
1.
The application be dismissed.
2.
The applicants to pay the first respondent’s costs, including any reserved costs, of and incidental to the application.
3.
Judgment for the cross-claimant against the cross-respondents for damages for breach of contract to be assessed in the absence of agreement.
4.
Judgment for the cross-claimant against the cross-respondents for damages for trespass to be assessed in the absence of agreement.
5.
The parties have liberty to apply on notice for directions as to the ascertainment of damages.
6.
The cross-respondents to pay the cross-claimant’s costs, including reserved costs, of and incidental to the cross-claim.