French v Bremner; Bremner v French [2020] NSWCA 339

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: French v Bremner; Bremner v French [2020] NSWCA 339 Hearing dates: 3, 4 December 2020 Decision date: 18 December 2020 Before: Meagher JA at [1]; Leeming JA at [2]; White JA at [118]. Decision: 1. Grant leave to Mr French to amend his notice of appeal to challenge the award of interest. 2. Dispense with the filing of an amended notice of appeal. 3. Allow Mr French's appeal in part and set aside order 1 of the orders made on 31 October 2019, but otherwise dismiss the appeal. 4. Direct the parties to supply agreed calculations, or in the absence of agreement, calculations for which each contends, of the amount of interest at 5% upon the amounts totalling $3,148,718 lent by Dr Bremner, within 28 days of today, noting that this Court proposes to enter judgment against Mr French on Dr Bremner's cross-appeal in the amount of $3,148,718 plus interest at the rate of 5%. 5. As against Ms Bakey, refuse leave to extend time within which to bring an appeal against the dismissal of the proceedings brought by Dr Bremner against her, and dismiss the cross-appeal insofar as it is brought against her as incompetent. 6. Order Dr Bremner to pay Ms Bakey's costs of the cross-appeal. 7. As against Mr French, dismiss Dr Bremner's cross-appeal. 8. Dismiss the balance of Mr French's notice of motion filed 30 October 2020. 9. Mr French to pay Dr Bremner's costs of his notice of motion filed 30 October 2020 to adduce further evidence on appeal. 10. Subject to orders 6 and 9, there be no order as to the costs of the appeal and cross-appeal, with the intention that Mr French and Dr Bremner bear their costs of the appeal and cross-appeal. Catchwords: CONTRACT – oral contracts concerning debt, joint venture to exploit inventions and rural properties – primary judge rejected claims in contract – no claim advanced in equity for partnership or breach of fiduciary duty – such claim renounced by senior counsel appearing at trial – no error in primary judge declining to address such claim – no error in rejection of oral contracts – appeal dismissed RESULTING TRUST – presumed resulting trusts – cross-appellant purchased rural lands and placed in joint names of him and first cross-respondent, or in sole name of second cross-respondent – primary judge found presumption of resulting trust rebutted – whether appellable error in so finding – testimonial evidence by cross-respondents – cross-appellant gave no evidence – one cross-respondent not cross-examined on her evidence of beneficial ownership – documents supported rebuttal of presumption – cross-appeal dismissed Legislation Cited: Civil Procedure Act 2005 (NSW), s 100 Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth), s 7 Partnership Act 1892 (NSW), s 30 Uniform Civil Procedure Rules 2005 (NSW), r 51.17 Cases Cited: Agusta Pty Ltd v Official Trustee in Bankruptcy as Trustee of Estates of Gustavo Ferella and Angelo Ferella [2009] NSWCA 129 Bull v Lee (No 2) [2009] NSWCA 362 Calverley v Green (1984) 155 CLR 242; [1984] HCA 81 Carantinos v Magafas [2008] NSWCA 304 Despot v Registrar-General of NSW (No 2) [2013] NSWCA 332 Foundas v Arambatzis [2020] NSWCA 47 French v Bremner [2019] NSWSC 1033 French v Bremner (No 2) [2019] NSWSC 1504 French v Bremner [2020] NSWCA 299 McDermott v Black (1940) 63 CLR 161; [1940] HCA 4 Rahme v Benjamin & Khoury Pty Ltd (2019) 100 NSWLR 550; [2019] NSWCA 211 United Dominions Corporation Ltd v Brian Pty Ltd (1985) 157 CLR 1; [1985] HCA 49 University of Wollongong v Metwally (No 2) [1985] HCA 258; 59 ALJR 481 Category: Principal judgment Parties: Andrew Boyd French (Appellant; First Cross-Respondent) Christopher Bremner (Respondent; Cross-Appellant) Gabrielle June Bakey (Second Cross-respondent) Representation: Counsel: Mr French and Ms Bakey, self-represented M Einfeld QC, A Harding SC (Respondent; Cross-Appellant)