Weige v Cupton Pty Ltd

Case [2012] NSWCA 414

Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Weige v Cupton Pty Ltd [2012] NSWCA 414
Hearing dates:23 November 2012
Decision date: 12 December 2012
Before: Basten JA at [1];
Ward JA at [2];
Sackville AJA at [78]
Decision:

Appeal dismissed with costs

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

APPEAL - credibility finding by trial judge - whether glaringly improbable or inconsistent with incontrovertible evidence - whether trial judge failed to use or misused advantage in assessing witness' testimony

EQUITY - purchase by one co-owner of shares in company holding other half-interest in trust - whether purchaser obtained beneficial interest in trust property - whether bona fide purchaser for value

REAL PROPERTY - indefeasibility of title - transfer by company of interest in land held on trust to sole shareholder of company - whether interest held as constructive trustee - Real Property Act 1900 (NSW), s 42(1)

TRUSTS - resulting trust - de facto relationship - contributions to purchase of property - whether loan moneys constituted contribution of one party or loan to purchaser facilitated by that party
Legislation Cited: Corporations Act 2001 (Cth)
Real Property Act 1900 (NSW)
Cases Cited: Abalos v Australian Postal Commission [1990] HCA 47; 171 CLR 167
Barnes v Addy (1874) LR 9 Ch App 244
Buffery v Buffery & Anor [2006] NSWSC 1349
Calverley v Green [1984] HCA 81; 155 CLR 242
CSR Ltd v Della Maddalena [2006] HCA 1; 224 CLR 1
David Securities Pty Ltd v Commonwealth Bank of Australia [1992] HCA 48; 175 CLR 353
Drever v Drever [1936] ALR 446
Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; 230 CLR 89
Fox v Percy [2003] HCA 22; 214 CLR 118
Pavey & Matthews Pty Ltd v Paul [1987] HCA 5; 162 CLR 221
Shepherd v Doolan [2005] NSWSC 42
Category:Principal judgment
Parties: Gregory William Weige (First Appellant)
Derek Heelan (Second Appellant)
Paul Miller (Third Appellant)
Cupton Pty Ltd (First Respondent)
Nicola Sproule (Second Respondent)
Representation: Counsel:
C K Stewart (Appellants)
P Menadue (Respondents)
Solicitors:
PJG Solicitors (Appellants)
Penmans Solicitors (Respondents)
File Number(s):CA 12/016719
 Decision under appeal 
Citation:
Derek Heelan v Cupton Pty Ltd [2011] NSWSC 1053
Date of Decision:
2012-10-14 00:00:00
Before:
Sackar J
File Number(s):
SC 10/152804

Judgment

  1. BASTEN JA: The appeal should be dismissed with costs, for the reasons given by Ward JA.

  1. WARD JA: This is an appeal from the dismissal of proceedings that has had the effect of leaving undisturbed the ownership by the second respondent (Ms Sproule) of a property located at Lower Mangrove.…

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AGLC
Weige v Cupton Pty Ltd [2012] NSWCA 414
Case
[2012] NSWCA 414
Decision Date

CaseChat Overview and Summary

The appeal concerned a dispute between a former de facto partner, Ms. Weige, and a company, Cupton Pty Ltd, which had acquired an interest in a property. Ms. Weige sought to establish that she held a beneficial interest in the property, which was registered in the name of Cupton Pty Ltd, arguing that the company's sole shareholder had purchased her half-interest in the company, which in turn held the other half-interest in the property on trust for her. The appeal was heard by Basten and Ward JJA and Sackville AJA.

The central legal issues before the Court of Appeal were whether the trial judge had erred in making findings of fact regarding the credibility of witnesses, particularly concerning the nature of certain financial contributions to the property's purchase, and whether the trial judge had correctly determined that Cupton Pty Ltd was a bona fide purchaser for value without notice of any equitable interest held by Ms. Weige. The Court also considered whether the indefeasibility provisions of the *Real Property Act 1900* (NSW) protected Cupton Pty Ltd's title, and whether the company's sole shareholder held the interest in the property as a constructive trustee for Ms. Weige.

The Court of Appeal upheld the trial judge's findings of fact, finding no basis to disturb the assessment of witness credibility. The Court reasoned that the evidence did not demonstrate that the trial judge's findings were glaringly improbable or inconsistent with incontrovertible evidence. Furthermore, the Court concluded that Cupton Pty Ltd had acquired its interest as a bona fide purchaser for value without notice, and therefore its title was protected by the indefeasibility provisions of the *Real Property Act 1900* (NSW). The Court found that the moneys advanced by Ms. Weige were properly characterised as a loan to the purchaser, rather than a contribution to her beneficial interest in the property.

The appeal was dismissed, and Cupton Pty Ltd was awarded its costs.

Orders

Orders of the court

Appeal dismissed with costs

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

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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