Anjoul v Anjoul [2021] NSWSC 592

Supreme Court New South Wales

Medium Neutral Citation: Anjoul v Anjoul [2021] NSWSC 592 Hearing dates: 15 February 2021 – 19 February 2021; final written submissions 11 March 2021 Decision date: 25 May 2021 Jurisdiction: Equity Before: Robb J Decision: See pars [265], [272], [278], [289], [300], [303], [306], [336], [345], [353] and [368]-[370]. A directions hearing will be fixed at which time the Court will consider the orders to be made to give effect to these reasons for judgment and, if appropriate, the future conduct of the proceedings Catchwords: BUILDING AND CONSTRUCTION — Home Building Act 1989 (NSW) — Residential building work — Consequences of failure to obtain contractor licence and insurance — Where the owner-builder defendant pleaded that the Act barred the plaintiff from being entitled to recover any money under a deed in respect of the residential building works because he did not have a contractor licence or insurance as required by the Act — Where the Court found that the Act did not prohibit the plaintiff from enforcing the deed if it was enforceable or from obtaining proper restitution if the deed was not unenforceable CONTRACTS — Remedies — Liquidated damages — Penalty — Where the defendant claimed that a term of the deed was a penalty and therefore unenforceable — Where the Court found that the provision was not a penalty because it could not properly be characterised as having the function of inducing performance of another provision of the deed CONTRACTS — Unjust contracts — Contracts Review Act 1980 (NSW) — Unjust — Where the plaintiff sought to enforce a deed of acknowledgement of debt — Where there was a material inequality of bargaining power between the plaintiff and defendant — Where the plaintiff exercised unfair pressure or unfair tactics in causing the defendant to enter into the deed — Where the Court found that provisions of the deed were unjust at the time the deed was entered into within the meaning of s 7 of the Act EQUITY — Equitable remedies — Restitution — Contract unenforceable — Where the plaintiff claimed in the alternative that the defendant held the property on constructive trust in favour of the plaintiff in proportion to the plaintiff's contributions to the renovation of the property — Where there was no joint endeavour between the parties in the sense of Muschinski v Dodds — Where the Court found that the plaintiff was not entitled to an equitable interest in the property on the basis of a partial constructive trust EQUITY — Unconscionable conduct — Special disability or disadvantage — Whether unconscientious advantage taken — Where the defendant claimed that her signature to a deed was the product of duress or undue influence or unconscionability, and that she signed the deed in reliance upon a representation by the plaintiff — Where the Court found that there was no relationship of influence between the plaintiff and defendant to establish undue influence — Where the Court found that the deed should be set aside in equity on the ground that it was procured by the plaintiff taking unconscionable advantage of the defendant's special disadvantage LAND LAW — Caveats — Caveatable interest — Where the defendant claimed that a deed executed by her did not grant a charge over the property in favour of the plaintiff to secure the payment of monies under the deed so that the plaintiff did not have a caveatable interest to support the caveat that he lodged — Where the Court found that the defendant's consent to the lodgement of the caveat demonstrated an intention that a charge would be created over the property by the lodgement RESTITUTION — Nature of restitutionary liability — Unjust enrichment — At the plaintiff's expense — Where the plaintiff's claim for the enforcement of a deed of acknowledgment of debt failed — Where the defendant disputed the amount claimed by the plaintiff — Where the defendant was not given an opportunity to verify the amount claimed — Where the plaintiff failed to provide proof at the hearing for the amount claimed — Where the defendant should not in principle enjoy the whole benefit of the renovation works for nothing — Where the Court found that the plaintiff may be entitled to restitution from the defendant for the reasonable costs of the residential building work done and materials supplied, and the value that his participation in the renovation added to the property Legislation Cited: Bankruptcy Act 1966 (Cth) Civil Procedure Act 2005 (NSW) Contracts Review Act 1980 (NSW) Home Building Act 1989 (NSW) Cases Cited: Antonovic v Volker (1986) 7 NSWLR 151 Big Kahuna Holdings Pty Ltd v Kitas [2012] NSWSC 615 Elders Rural Finance Ltd v Smith (1996) 41 NSWLR 296 Esanda Finance Corporation Ltd v Tong (1997) 41 NSWLR 482 Ford bht Watkinson v Perpetual Trustees Victoria Ltd (2009) 75 NSWLR 42 Kay v Playup Australia Pty Ltd (2020) 19 BPR 40,037; [2020] NSWCA 33 Muschinski v Dodds (1985) 160 CLR 583 Perpetual Trustee Co Ltd v Khoshaba (2005) 14 BPR 26,639; [2006] NSWCA 41 Suncorp-Metway Ltd v Bellairs [2009] NSWSC 135 Ta Lee Investment Pty Ltd v Antonios [2019] NSWCA 24 Verduci v Golotta (2010) 15 BPR 28,865; [2010] NSWSC 506 Watson v Foxman (1995) 49 NSWLR 315 West v AGC (Advances) Ltd (1986) 5 NSWLR 610 Texts Cited: JD Heydon, MJ Leeming and PG Turner, Meagher, Gummow & Lehane's Equity: Doctrines & Remedies (5th ed 2014, LexisNexis Butterworths) Category: Principal judgment Parties: Jerry Anjoul (plaintiff) Ashley Anjoul (defendant) Representation: Counsel: M Daniels (plaintiff) P Newton / M Collins (defendant)