Anjoul v Anjoul (No 3) [2022] NSWSC 1456

Supreme Court New South Wales

Medium Neutral Citation: Anjoul v Anjoul (No 3) [2022] NSWSC 1456 Hearing dates: 19 September 2022 Decision date: 27 October 2022 Jurisdiction: Equity Before: Robb J Decision: See [62] - [65] below Catchwords: EQUITY — general principles and maxims — they who seek equity must do equity — defendant provisionally successful in defending enforcement of deed on grounds of unconscionable conduct and Contracts Review Act 1980 (NSW), s 7 — Court finds that defendant ought to pay plaintiff compensation as condition to making order declaring deed void — parties granted leave to adduce certain evidence on issue of quantum of compensation payable to plaintiff — assessment of compensation — competing expert reports — over-capitalisation in renovating residential property — plaintiff entitled to $400,000 in compensation Legislation Cited: Contracts Review Act 1980 (NSW), ss 7, 8, Sch 1 cl 1 Home Building Act 1989 (NSW) Cases Cited: Anjoul v Anjoul [2021] NSWSC 592 Anjoul v Anjoul (No 2) [2021] NSWSC 1511 Category: Consequential orders Parties: Jerry Anjoul (Plaintiff) Ashley Anjoul (Defendant) Representation: Counsel: G P McNally SC (Plaintiff) P Newton SC & M Collins (Defendant)

Solicitors: Edwards Kirby Lawyers (Plaintiff) JD Law Group (Defendant) File Number(s): 2018/383865

JUDGMENT 1. This is the third judgment in these proceedings between the plaintiff, Jerry Anjoul, and the defendant, Ashley Anjoul. Ashley Anjoul is the former wife of Anthony Anjoul, who is the brother of Jerry Anjoul. 2. As the parties did, and without meaning any disrespect, I will refer to the parties and Anthony by their first names. 3. The principal judgment was delivered on 25 May 2021: Anjoul v Anjoul [2021] NSWSC 592 ("J1"). I will assume that the reader has knowledge of the principal judgment. It dealt with an application by Jerry to enforce a deed dated 14 November 2013 to which Jerry and Ashley were parties. The deed required Ashley to pay Jerry $700,000 with CPI increases for the cost allegedly incurred by Jerry in carrying out a substantial renovation of a home in Winston Hills that was solely in Ashley's name. In the alternative, Jerry sought a declaration that Ashley held her interest in the property subject to a constructive trust in favour of Jerry in proportion to Jerry's contributions to the renovation of the property. Finally, Jerry sought an order that Ashley make restitution to Jerry in the sum of $743,353.45. 4. Ashley responded to Jerry's claim by seeking an order that the deed be set aside on the ground that it had been procured by unconscionable conduct on the part of Jerry. She also sought an order declaring the deed to be void under s 7 of the Contracts Review Act 1980 (NSW). Finally, Ashley sought a declaration to the effect that Jerry was not entitled to enforce against her any right to payment for the renovation work because of the operation of the Home Building Act 1989 (NSW). 5. Ashley provisionally succeeded on the first two of these responses but failed on the third. I say 'provisionally' because I found at J1 [353] that Ashley should not enjoy the whole benefit of the renovation works for nothing, and that Jerry ought to be paid some reasonable amount of compensation for his expenditure and efforts. Similarly, I found at J1 [317] that, under s 8 and Schedule 1 cl 1(b) of the Contracts Review Act, the Court had power to make an order that Ashley pay Jerry compensation as a condition to the Court making an order declaring the deed to be void. 6. This outcome of the principal judgment created a problem in that there was not a ready basis on the evidence for determining the amount of compensation that Ashley should be ordered to pay to Jerry as a condition of the setting aside of the deed. The principal reason for this situation was that Jerry had failed to tender adequate evidence to establish his alternative claim for reasonable remuneration for undertaking the renovation works. The inadequacy of Jerry's evidence was explained at J1 [68]-[84]. In essence, the evidence led by Jerry was largely a matter of assertion and was incomplete, and some of the assertions were inconsistent with parts of the evidence. 7. Importantly, at J1 [69], I set out a table tendered by Jerry that has come to be called the schedule of payments. The schedule was prepared by Jerry and lists the costs against all the trades and professions necessary to carry out the renovation, as well as in most cases the alleged suppliers of the relevant materials and services. 8. For reasons that I set out at J1 [355]-[369], I was not prepared to make final orders given the circumstances of the proceedings at the time of my judgment. I was not prepared to give Ashley the whole benefit of the renovation without Jerry receiving some reasonable compensation. But I could not on the available evidence rationally determine what the amount of the compensation should be. 9. On 20 October 2021, Jerry filed a notice of motion in which he sought the following relief: The plaintiff be granted leave to: a. adduce evidence relating to any conditions that may be imposed on the relief to set aside the deed between the plaintiff and the defendant, such evidence to relate to the value of the benefit received by the defendant by reason of the works carried out on [the Winston Hills property]; and/or b. re-open his case for the purpose of adducing evidence in relation to the value of the benefit received by the defendant by reason of the works carried out on [the Winston Hills property]. 1. Previously, by order made on 6 October 2021, Jerry had been required to prepare and serve upon Ashley the evidence that he would seek the leave of the Court to lead. That order was made because I would not entertain an application by Jerry for an open-ended order permitting him to lead whatever new evidence he wished to lead, without Ashley being given notice of the substance of that evidence in advance of the hearing of the notice of motion. 2. The notice of motion was heard on 15 November 2021, and on 23 November 2021 I delivered the second judgment in these proceedings: Anjoul v Anjoul (No 2) [2021] NSWSC 1511 ("J2"). On 15 December 2021, I made the following orders: 1. ORDER that without prejudice to the defendant's/cross claimant's right to make objections in relation to the admissibility of the following, the plaintiff is granted leave to adduce evidence in the following form in relation to the conditions which should be imposed on the cross claimant in relation to the setting aside of the Deed dated 14 November 2013 (Conditions Issue): (a) QS Building Economics report by Mark Seeto dated 19 October 2021 together with the emails attached to the affidavit of Frederick Laws affirmed 28 October [20]21; and (b) John Virtue Valuers report by Grant Phillips and Barry Coad dated 12 October 2021. 2. ORDER the defendant/cross claimant file and serve any evidence upon which she intends to rely on in relation to the Conditions Issue by 4 February 2021. 3. ORDER the plaintiff/cross defendant is to file and serve any evidence in reply in relation to the Conditions Issue by 25 February 2022. 1. Mr Seeto is a quantity surveyor whose report provided opinions concerning the reasonable cost of the renovation works on a number of different assumptions. Mr Phillips' and Mr Coad's report provided valuations of the Winston Hills property on certain assumptions as of 2009 when the renovation work was done and 2021. 2. Ashley did not serve expert quantity surveyor evidence in response to Mr Seeto's report. Ashley served a report dated 3 March 2022 by Richard Perry, a valuer, in response to the report of Mr Phillips and Mr Coad. 3. Jerry served a supplementary report of Mr Phillips and Mr Coad that replied to the report of Mr Perry.