The Cleaning Doctor NSW Pty Ltd v Fonseca [2023] NSWCA 110

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: The Cleaning Doctor NSW Pty Ltd v Fonseca [2023] NSWCA 110 Hearing dates: 22 and 23 November 2022 Date of orders: 26 May 2023 Decision date: 26 May 2023 Before: Brereton JA at [1] Mitchelmore JA at [23] Simpson AJA at [187] Decision: 1. The appeal is dismissed. 2. The cross-appeal is dismissed. 3. The appellants are to pay the respondents' costs of the appeal. Catchwords: EQUITY – trusts and trustees – express trusts – resulting trusts – constructive trusts – where property purchased by the second appellant was later transferred to the second respondent – whether, pursuant to an agreement between the second appellant and the second respondent, the property was held on trust for the second appellant – whether the transfer of the property to the second respondent occurred without consideration for the second appellant's equity or for false consideration – whether the transfer of the property to the second respondent was a sham giving rise to a resulting trust in favour of the second appellant – whether the later transfer of the property to a third party to release mortgages over properties belonging to the respondents impressed those properties with constructive trusts in the second appellant's favour BANKING AND FINANCE – banks – bank accounts – where bank account was opened in the name of the first appellant, with the second appellant as sole signatory – where second appellant provided first and second respondents with signed blank cheques, a debit card and online access for the bank account – where first and second respondents and other persons made withdrawals from the bank account – whether the second appellant was the legal and beneficial owner of the money in the bank account – whether the first and second respondents bore the onus of proving their authority to make withdrawals from the bank account RESTITUTION – nature of restitutionary liability – common counts – money had and received – whether primary judge failed to decide appellants' claim as to money had and received – whether primary judge erred in finding that the appellants did not discharge the onus of proving that the withdrawals from the bank account were made without authority TORTS – interference with goods – conversion – where first and second respondents withdrew sums of money from a bank account in the first appellant's name by the cashing of cheques – whether primary judge erred in finding that the appellants did not discharge their onus of proving that the first and second respondents made the withdrawals without authority and therefore converted the cheques to their use and/or the use of other respondents Legislation Cited: Cheques Act 1986 (Cth), ss 18, 36, 71 Conveyancing Act 1919 (NSW), s 44 Cases Cited: Australian Financial Services and Leasing Pty Ltd v Hills Industries Ltd (2014) 253 CLR 560; [2014] HCA 14 Bosanac v Commissioner of Taxation (2022) 96 ALJR 976; [2022] HCA 34 Chapple v Electrical Trades Union [1961] 3 All ER 612 Coshott Family Pty Ltd v Lyons [2022] NSWCA 216 Currie v Dempsey (1967) 69 SR (NSW) 116 David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353; [1992] HCA 48 Equiticorp Finance Ltd v Bank of NZ (1993) 32 NSWLR 50 Films and Casting Temple v Malla [2013] NSWCA 377 Finlay v Silcon Industries Pty Ltd [2003] SASC 236 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Hill End Gold Ltd v First Tiffany Resource Corp [2008] NSWSC 1412 John Holland Pty Ltd v Kellogg Brown & Root Pty Ltd [2015] NSWSC 451 Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 Pettitt v Pettitt [1970] AC 777 Pinson v Lloyds and National Provincial Foreign Bank Ltd [1941] 2 KB 72 Sino Iron Pty Ltd v Worldwide Wagering Pty Ltd (2017) 52 VR 664; [2017] VSC 101 Suvaal v Cessnock City Council (2003) 77 ALJR 1449; [2003] HCA 41 Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285 Watson v Foxman (1995) 49 NSWLR 315 Wirth v Wirth (1956) 98 CLR 228; [1956] HCA 71 Category: Principal judgment Parties: The Cleaning Doctor NSW Pty Ltd (ACN 139 483 926) (First Appellant) Ali Itawi (Second Appellant) Jeffrey Alexis Fonseca (First Respondent) Orlando Fonseca (Second Respondent) Vilma Fonseca (Third Respondent) Joselyn Fonseca (Fourth Respondent) 7/49-51 Stanley Street Pty Ltd (ACN 144 069 787) (Fifth Respondent) 147 Holt Road Pty Ltd (ACN 602 121 040) (Sixth Respondent) Representation: Counsel: M Ashhurst SC, Q Rares (Appellants) F Carnovale (Respondents)