Reliance Financial Services Pty Ltd v Antalija Developments No 4 Pty Ltd [2022] NSWSC 519

Supreme Court New South Wales

Medium Neutral Citation: Reliance Financial Services Pty Ltd v Antalija Developments No 4 Pty Ltd [2022] NSWSC 519 Hearing dates: 14 – 18, 25 February, 2 – 3 March 2022 Decision date: 02 May 2022 Jurisdiction: Equity Before: Robb J Decision: The parties should confer for the purpose of preparing short minutes of order to give effect to these reasons and they should include case management orders to deal with all outstanding issues Catchwords: CONTRACTS — misleading conduct under statute — misleading or deceptive conduct — third and fourth defendants operate residential development business through second defendant — second plaintiff through her agent arranges for residential development project with third and fifth defendants — first defendant incorporated to purchase land on unit trust for second plaintiff, third defendant and fifth defendant themselves as trustees of separate discretionary trusts — plaintiffs claim enforcement of contract between unit holders containing clause giving rise to breach of contract by third defendant and liability of first defendant to second plaintiff for loan at substantial interest rate — whether particular clause of contract void for misleading or deceptive conduct by agent of second plaintiff — development arrangements made in quasi-familial context — request by third defendant of agent of second plaintiff whether legal or financial advice required in respect of contract — response by agent of second plaintiff that contract contained 'standard' or 'simple' terms — failure by agent of second plaintiff to bring third defendant's attention to unusual term — declaration that particular clause void ab initio EQUITY — trusts and trustees — breaches of trust — plaintiffs claim that first defendant as corporate trustee breached its duties by securing loan over trust property to pay other corporate vehicle of third and fourth defendants — plaintiffs claim that first defendant breached its duties by making unauthorised repayment of third and fifth plaintiffs' contribution to development arrangement — plaintiffs claim that first defendant breached its duties by entering into costs agreement with defendants' solicitors — plaintiffs seek replacement of first defendant as trustee of unit trust — plaintiffs seek account of unit trust AGENCY — liability of principal — relations between principals and third parties — second plaintiff bound by misleading or deceptive conduct of agent in respect of third defendant Legislation Cited: Australian Consumer Law, ss 18, 237, 243 Fair Trading Act 1987 (NSW), s 28 Competition and Consumer Act 2010 (Cth), Sch 2 Trustee Act 1925 (NSW), s 70 Cases Cited: Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594; [1990] HCA 17 L'Estrange v F Graucob Ltd [1934] 2 KB 394 Manning v Commissioner of Taxation (1928) 40 CLR 506 Nadinic v Cheryl Drinkwater as Trustee for the Cheryl Drinkwater Trust [2020] NSWCA 2 Re Ku-ring-gai Co-operative Building Society (No 12) Ltd (1978) 22 ALR 621 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165; [2004] HCA 52 Texts Cited: JD Heydon and MJ Leeming, Jacobs' Law of Trust in Australia (8th ed, 2016, LexisNexis Butterworths) Category: Principal judgment Parties: Reliance Financial Services Pty Ltd (First Plaintiff) Nancy Morvillo (Second Plaintiff) Marginata Securities Pty Ltd (Third Plaintiff) Accolade Advisory Pty Ltd (Fourth Plaintiff) Antalija Developments No 4 Pty Ltd (First Defendant) Antalija Constructions Pty Ltd (Second Defendant) Dennis Katavic (Third Defendant) Jocelyn Katavic (Fourth Defendant) Sue Price-Arcidiacono (Fifth Defendant) Representation: Counsel: M Ashhurst SC & D Allen (Plaintiffs) P Greenwood SC & A Oakes (First to Fourth Defendants)