Valoutin Pty Ltd v Furst

Case [1998] FCA 339


FEDERAL COURT OF AUSTRALIA

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

Alexander v Mills (1870) 6 Ch App 124 mentioned
Avondale Printers & Stationers Ltd v Haggie [1979] 2 NZLR 124 discussed
Baker & Ors v Official Trustee in Bankruptcy (unreported, Full Court, Federal Court, 3 August 1995) applied
Bain v Fothergill (1874) 7HL 158 mentioned
Bell v Scott (1921) 21 SR(NSW) 706 mentioned
Bell v Scott (1922) 30 CLR 387 mentioned
Biggs v McEllister (1880) 14 SALR 86 mentioned
Bogdanovic v Koteff (1988) 12 NSWLR 472 not followed
Boyman v Gutch (1831) 131 ER 147 mentioned
Brady v Stapleton (1952) 88 CLR 322 applied
Brickles v Snell [1916] 2 AC 599 mentioned
Calverley v Green (1984) 155 CLR 242 mentioned
Chang v The Registrar of Titles (1976) 137 CLR 177 mentioned
Charles Marshall Pty Ltd v Grinsley (1956) 95 CLR 353 mentioned
Cooper v Denne (1792) 34 ER 754 applied
Crichton v Crichton (1930) 43 CLR 536 considered
Crow v Campbell (1884) 10 VLR (E) 186 mentioned
Dowling v Moore (1908) 9 SR(NSW) 31 followed
Duke Group Ltd(in liq) v Pilmer & Ors (Unreported, Supreme Court of South Australia, 4 November 1994, Mullighan J) followed
Dyer v Dyer (1788) 30 ER 42 mentioned
Facey & Ors v Rawsthorne & Anor (1925) 35 CLR 566 mentioned
Forrer v Nash (1865) 55 ER 858 discussed
Frazer v Walker [1967] 1 AC 569 discussed
Gollin & Company Ltd v Karenlee Nominees Pty Ltd (1983) 153 CLR 455 distinguished
Halkett v Earl of Dudley [1907] 1 Ch 590 discussed
Harold Elliott and H Elliott (Builders) Ltd v Pierson [1948] Ch 452 discussed
Haynes v Hirst (1927) 27 SR(NSW) 480 mentioned
Hutchinson & Anor v Ross (1933) 262 NY 381…

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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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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