Way v Bowling - [2024] NSWSC 986

Supreme Court

New South Wales

Medium Neutral Citation: Way v Bowling [2024] NSWSC 986
Hearing dates: 22, 23, 24 and 25 July
Date of orders: 16 August 2024
Decision date: 16 August 2024
Jurisdiction: Equity
Before: Hmelnitsky J
Decision:
(1) Proceedings dismissed with costs.
(2) Parties to bring in short minutes of order by 4:00PM on Friday, 23 August 2024, dealing with the payment of funds out of Court.

Catchwords:
CONTRACTS – Formation – Existence of contract – Whether parties contracted into lottery syndicate at relevant time – Where one party found to have left lottery syndicate – Where no contract existed at the relevant time
EQUITY — Trusts and trustees – Whether express trust created for lottery syndicate – Where lottery syndicate had ended
EQUITY — Trusts and trustees – Common intention constructive trust – Where lottery syndicate had ended and no common intention to continue legal relationship
PARTNERSHIPS AND JOINT VENTURES — Existence of partnership — Carrying on business in common – Where no business was being carried on

Legislation Cited:
Partnership Act 1892 (NSW), s 1

Cases Cited:
Baumgartner v Baumgartner (1987) 164 CLR 137; [1987] HCA 59
Brendan Wilfred King v Robert Lawrence Adams [2016] NSWSC 1798
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Muschinski v Dodds (1985) 160 CLR 583; [1985] HCA 78
Van Rassel v Kroon (1953) 87 CLR 298; [1953] HCA 3

Category: Principal judgment
Parties: Alan Way (Plaintiff)
Mark Peter Bowling (First Defendant)
Moya Posar (Second Defendant)
Representation:
Counsel:
D P O’Connor/S Scott (Plaintiff)
P Batley/B Prentice-Davidson (Defendants)
Solicitors:
RMB Lawyers (Plaintiff)
O’Brien Criminal and Civil Solicitors (Defendants)

File Number(s): 2023/00025010
Publication restriction: Nil

JUDGMENT

On 5 August 2022, the first defendant purchased a ticket in the NSW Lotteries Saturday Lotto draws 4283 to 4285 from the Narellan Newsagency. On Saturday, 13 August 2022 that ticket won prizes totalling $5,011,576.70 in draw 4285.
It is not in dispute that the first defendant purchased the winning ticket on behalf of a syndicate consisting of, at least, him and the second defendant. It is also not in dispute that the plaintiff was a member of that syndicate for more than a year commencing on about 17 April 2019. The principal issue in dispute is whether he was still a member of the syndicate on 5 August 2022 when the first defendant purchased the winning ticket.

Uncontroversial facts

The parties were at all relevant times residents of NSW social housing apartments in Elderslie, NSW. There are 20 apartments in the housing complex, which are mostly single occupancy. There was a total of about 24 residents at the relevant times.
The plaintiff is Mr Allan David Way, although he was known to the other residents, including the defendants, as Rod Squires. Mr Way took up residence in the apartments in 2018.
The first defendant is Mr Mark Peter Bowling, who is 76 years of age. The second defendant is Ms Moya Posar, who is 89 years of age. They…

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 Way v Bowling

Details

AGLC: Way v Bowling [2024] NSWSC 986
Case: [2024] NSWSC 986
Decision Date: 16 August 2024

CaseChat Overview and Summary

The matter of Way v Bowling was heard by the Supreme Court of Queensland. The dispute arose from a lottery syndicate that was established between the plaintiff, Way, and the defendant, Bowling. The plaintiff claimed that the defendant owed them a share of a lottery prize, alleging that the defendant had left the syndicate without their consent and that an express trust had been created for the syndicate. The defendant, however, argued that no contract or trust existed at the relevant time, and that there was no common intention to continue the legal relationship between the parties.

The court was required to determine whether there was a binding contract or trust in place at the time of the lottery draw. The key legal issues included whether the parties had entered into a lottery syndicate at the relevant time, whether an express trust had been created for the syndicate, and whether a common intention constructive trust applied given the circumstances of the case.

The court found that no contract existed between the parties at the time of the lottery draw as the defendant had left the syndicate prior to the draw. Consequently, there could be no enforceable agreement or trust in relation to the lottery winnings. The court also held that there was no common intention constructive trust as the syndicate had ended, and there was no ongoing business or legal relationship between the parties. The court concluded that the plaintiff's claims were not founded on any valid legal relationship.

The court dismissed the plaintiff's claims in their entirety and ordered that the defendant was not liable to the plaintiff for any share of the lottery prize. The court further ruled that there was no requirement for the defendant to account for any funds related to the lottery winnings.

Orders