Wise Investments Pty Ltd v Cullen atf the Cullen Trust

In Wise Investments Pty Ltd v Cullen atf the Cullen Trust, the plaintiff, Wise Investments, sought restitution of monies paid to the first defendant, Cullen, in connection with a proposed real estate transaction. The plaintiff alleged that the payment of funds to Cullen or third parties was made in anticipation of the acquisition of seven lots of land, but no written contract was executed. Cullen countered that the payment was part of a scheme to conceal assets rather than for the intended agreement. The court had to determine whether the plaintiff could recover the funds on the basis of total failure of consideration, and if Cullen's evidence was sufficient to support his claim.

The primary legal issues were whether the plaintiff could claim restitution for the monies paid to Cullen, and whether Cullen's evidence met the Briginshaw standard, considering the seriousness of the accusation against him. The court also had to consider whether the plaintiff could assign the debt, whether Cullen had pleaded to the plaintiff's capacity to assign, and whether the plaintiff could recover the funds due to total failure of consideration. Additionally, the court examined whether Cullen's transfer of property to the fourth defendant was made with the intent to defraud creditors, and whether the fourth defendant had notice of such intent at the time of the conveyance.

The court found that Cullen's evidence did not meet the Briginshaw standard, and therefore the plaintiff could claim restitution of the monies paid. The court determined that the plaintiff had assigned the debt, and that Cullen had not pleaded to the plaintiff's capacity to assign. The court concluded that the plaintiff could recover the funds due to total failure of consideration. The court also found that Cullen's transfer of property to the fourth defendant was not made with the intent to defraud creditors, and that the fourth defendant did not have notice of such intent at the time of the conveyance.

The court ordered judgment in favour of the plaintiff against Cullen for $815,000 plus interest to be assessed. The plaintiff's claims against the second and fourth defendants were dismissed, as was Cullen's counterclaim against the third defendant. The plaintiff was ordered to pay the second defendant's costs of the proceeding, to be assessed on the standard basis until 23 November 2017 and on the indemnity basis thereafter.