Sergei Sergienko v AXL Financial Pty Limited [2021] NSWSC 297

Supreme Court New South Wales

Medium Neutral Citation: Sergei Sergienko v AXL Financial Pty Limited [2021] NSWSC 297 Hearing dates: 8, 9, 10, 11, 12, 15 March 2021 Decision date: 26 March 2021 Jurisdiction: Equity - Commercial List Before: Hammerschlag J Decision: (1) Judgment for the plaintiff for money amounts (2) Orders for specific performance for a Deed of Settlement (3) Declaration that the first defendant breached its obligations as the trustee of the fifth defendant and that the fifth defendant is entitled to equitable compensation Catchwords: EQUITY – CONTRACT – equitable interests in real property – priorities – specific performance of a Deed of Settlement (the Deed) requiring the granting of a legal mortgage – construction – parties entered into the Deed settling earlier litigation which required the defendant in that litigation to pay certain amounts and secure its obligations by granting a mortgage over unencumbered real property owned by it – property was held in trust for another party – where the parties to the earlier litigation had agreed outside the terms of the Deed not to report or make any complaint about illegal conduct – construction of provisions of the Deed requiring payment and extent of the obligations secured – whether the Court should withhold specific performance of the Deed – who as between the plaintiff and the beneficial owner of the property has priority – claim by the owner of the land against its trustee for equitable compensation for breach of trust Legislation Cited: Civil Procedure Act 2005 (NSW) Duties Act 1997 (NSW) Cases Cited: Abigail v Lapin (1934) 51 CLR 58 HDI Global Specialty SE v Wonkana No. 3 Pty Ltd [2020] NSWCA 296 Hyde v Reliance (1983) 154 CLR 326 Latec Investments Ltd v Hotel Terrigal Pty Ltd (1965) 113 CLR 265 MacFarlane v Daniell (1938) 38 SR (NSW) 337 North v Marra Developments Limited (1981) 148 CLR 42 Valoutin Pty Ltd v Furst (1998) 154 ALR 119 Young v Jackman (1986) 7 NSWLR 97 Category: Principal judgment Parties: Sergei Sergienko – Plaintiff/Fourth Cross-Defendant to the Second Cross-Claim AXL Financial Pty Limited – First Defendant/Cross-Claimant to the First Cross-Claim/First Cross-Defendant to the Second Cross-Claim Oliver Roths – Second Defendant Roths Holdings Australia Pty Ltd – Third Defendant IWC Industries Pty Limited – Fourth Defendant/First Cross-Claimant to the Second Cross-Claim DK Excavations and Concreting Pty Ltd – Fifth Defendant/Second Cross-Claimant to the Second Cross-Claim AXL Capital Partners Pty Ltd – Cross-Defendant to the First Cross-Claim/Second Cross-Defendant to the Second Cross-Claim Ian Robert Chalmers – Third Cross-Defendant to the Second Cross-Claim Representation: Counsel: B Coles QC with D Meyerowitz-Katz – Plaintiff/Fourth Cross-Defendant to the Second Cross-Claim T Rogan – Fourth and Fifth Defendants/First and Second Cross-Claimants to the Second Cross-Claim IR Chalmers (director) - Cross-Defendant to the First Cross-Claim/Second Cross-Defendant to the Second Cross-Claim/ Third Cross-Defendant to the Second Cross-Claim (self-represented)