The Cleaning Doctor NSW Pty Ltd v Fonseca [2022] NSWSC 253

Supreme Court New South Wales

Medium Neutral Citation: The Cleaning Doctor NSW Pty Ltd v Fonseca [2022] NSWSC 253 Hearing dates: 9, 10, 11, 12, 13, 16, 17, 18, 19, 20 and 23 November 2020, 2 and 3 December 2020, with further written submissions received on 4, 10, 11, 16 and 18 December 2020 Date of orders: 11 March 2022 Decision date: 11 March 2022 Jurisdiction: Equity Before: Williams J Decision: Proceedings dismissed at [563]. Catchwords: EQUITY – trusts and trustees – beneficial ownership of real property – express trust – resulting trust – Quistclose trust – where Torrens title land allegedly transferred to be held on trust for transferor and/or for purpose which later failed and/or with no consideration for transferor's "equity" in the land or for false consideration ESTOPPEL – proprietary estoppel – where first plaintiff transferred property to second defendant allegedly assuming it would be reconveyed to him and claims that property was held in trust for him – whether second defendant is estopped from denying the trust

BANKING AND FINANCE – cheque account – whether first plaintiff was the legal and beneficial owner of "the money" standing to the credit of its bank account – where first plaintiff provided defendants with signed blank cheques and signed debit card for first plaintiff's bank account and online access to that account – scope of the defendants' authority to withdraw from the account by completing signed blank cheques as payable to cash in specified amounts, by using debit card and by making online transactions – whether the moneys withdrawn were stolen and held on trust for the first plaintiff in the hands of the defendants RESTITUTION – money had and received – whether defendants unjustly enriched by receipt of moneys withdrawn form and allegedly stolen from first plaintiff's bank account TORTS – alleged conversion by defendants of signed blank cheques for first plaintiff's bank account – alleged conversion by defendants of notes and coins received from the bank when defendants made withdrawals using signed blank cheques competed by defendants Legislation Cited: Australian Consumer Law, s 18 Australian Consumer Law, s 236 Cheques Act 1986 (Cth), ss 3, 10-24, 36, 71, 88 Civil Procedure Act 2005 (NSW), ss 56-58 Conveyancing Act 1919 (NSW), s 44 Corporations Act 2001 (Cth), ss 198B, 601AB Evidence Act 1995 (NSW), s 136 Trade Practices Act 1974 (Cth), s 52 Trade Practices Act, s 82 Cases Cited: Barclays Bank Ltd v Quistclose Investments Ltd [1970] AC 567 Barnes v Addy (1874) LR 9 Ch App 244 Bhana v Bhana [2002] NSWSC 117 Black v S Freedman & Co (1910) 12 CLR 105 Blatch v Archer (1774) 1 Cowp 63; 98 ER 969 Bunnings Group Ltd v CHEP Australia Ltd (2011) 82 NSWLR 420 Calverley v Green (1984) 155 CLR 242 Citigroup Pty Ltd v National Australia Bank Ltd (2012) 82 NSWLR 391; [2012] NSWCA 381 Cousens v Grayridge Pty Ltd [2000] VSCA 96 Croton v R [1967] HCA 48; (1967) 117 CLR 326 Donaghue v Donaghue [2015] QSC 54 Drayson v Drayson [2011] NSWSC 965 ET-China.com International Holdings Ltd v Cheung (2021) 388 ALR 128; [2021] NSWCA 24 Foley v Hill (1848) 2 HL Cas 28; 9 ER 1002 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Gas & Fuel Corporation of Victoria v Barba [1976] VR 755 Greer v Kettle [1938] AC 156 Ho v Powell (2001) 51 NSWLR 572; [2001] NSWCA 168 Joachimson v Swiss Bank Corp [1921] 3 KB 110 at 127 John Holland Pty Ltd v Kellogg Brown & Root Pty Ltd [2015] NSWSC 451 Moubarak by his tutor Coorey v Holt (2019) 100 NSWLR 218; [2019] NSWCA 102 Peterson v Moloney (1951) 84 CLR 91 R v Parsons [1999] HCA 1; (1999) 195 CLR 619 Radoman Pty Ltd Vexapu Pty Ltd [2008] NSWSC 8 Re Association for Visual Impairment The Homeless and The Destitute Inc [2014] VSC 183 Singh v Singh [2004] NSWSC 109 Watson v Foxman (1995) 49 NSWLR 315 Wirth v Wirth (1956) 98 CLR 228 Category: Principal judgment Parties: The Cleaning Doctor NSW Pty Ltd (ACN 139 483 926) (First Plaintiff) Ali Itawi (Second Plaintiff) Jeffrey Fonseca (First Defendant) Orlando Fonseca (Second Defendant) Vilma Fonseca (Third Defendant) Joselyn Fonseca (Fourth Defendant) 7/49-51 Stanley Street Pty Ltd (Fifth Defendant) 147 Holt Road Pty Ltd (ACN 602 121 404) (Sixth Defendant) Representation: Counsel: Mr M Ashhurst SC with Mr Q Rares (Plaintiffs) Mr F P Carnovale (Defendants)