Access Training Group Limited v James Michael Jane & Ors; Access Group Training Limited v Venture Capital Fund Australia Limited [2023] NSWSC 1416

Supreme Court New South Wales

Medium Neutral Citation: Access Training Group Limited v James Michael Jane & Ors; Access Group Training Limited v Venture Capital Fund Australia Limited [2023] NSWSC 1416 Hearing dates: 4 – 6 October 2023; 11 October 2023; 13 October 2023; 16 October 2023; further written submissions provided on 24 October 2023, 30 October 2023 and 1 November 2023 Date of orders: 22 November 2023 Decision date: 22 November 2023 Jurisdiction: Equity Before: Nixon J Decision: The Court: (1) Directs the parties to bring in short minutes of order, by 5pm on 6 December 2023, to give effect to these reasons for judgment, including: (a) orders that deal with interest and costs, insofar as those matters can be agreed; and (b) insofar as interest and/or costs are not agreed, proposed directions for evidence and submissions in respect of issues of interests and/or costs. Catchwords: CONTRACT – Payments totalling $1.3m were made by plaintiff to defendant following discussions between principals – Dispute as to whether payments represented a loan to defendant or payment for services rendered by defendant – Subsequent conduct of parties revealed a common assumption that a loan agreement had been entered CONTRACT – Parties agreed to share office premises and to share, on an equal basis, rent and outgoings over the term of a three-year lease – Whether the agreement was breached – No breach or loss found RESTITUTION – Common counts – Claim for money had and received – Payment of $1.7m made to defendants as deposit for sale of their shares to plaintiff – Sale of shares did not proceed – Whether a total failure of consideration – Whether the parties entered into a Share Sale Agreement – Agreement found to be entered – No total failure of consideration – Terms of agreement govern repayment of deposit CONTRACT – Set-off – Share Sale Agreement provided for payments due from plaintiff or related parties to be set off against defendants' obligation to repay the deposit – Whether defendants established the existence of payments due from plaintiff or related parties – Effect of set off Legislation Cited: Corporations Act 2001 (Cth) ss 50AA; 127(1); 228(1) Evidence Act 1995 (NSW) ss 91; 92(2); 97(1)(a); 140; 149 Cases Cited: Ainsworth v Burden [2005] NSWCA 174 Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153; [2001] NSWCA 61 Briginshaw v Briginshaw (1938) 60 CLR 336 Brogden v Metropolitan Railway Co (1877) 2 App Cas 666 Commissioner of Stamp Duties (NSW) v Perpetual Trustee Co Ltd (1929) 43 CLR 247; [1929] HCA 27 Coshott Family Pty Ltd v Lyons [2022] NSWCA 216; (2022) 110 NSWLR 44 David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353; [1992] HCA 48 Elomar v R; Hasan v R; Cheikho v R; Cheikho v R; Jamal v R [2014] NSWCCA 303 Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd (1988) 14 NSWLR 523 Equuscorp Pty Ltd v Haxton; Equuscorp Pty Ltd v Bassat; Equuscorp Pty Ltd v Cunningham's Warehouse Sales Pty Ltd (2012) 246 CLR 498; [2012] HCA 7 Federal Commissioner of Taxation v Steeves Agnew & Co (Vic) Pty Ltd (1951) 82 CLR 408 Forte Sydney Construction Pty Ltd v N Moit & Sons (NSW) Pty Ltd [2022] NSWCA 186 Gibbons v Pozzan (2007) 209 FLR 233; [2007] SASC 99 Harmony and Montague Tin and Copper Mining Company (1873) LR 8 Ch 407 Howard Smith & Co Ltd v Varawa (1907) 5 CLR 68; [1907] HCA 38 In the matter of Integrated Growth Solutions Pty Ltd [2017] NSWSC 368 Johnston v Brightstars Holding Company Pty Ltd [2014] NSWCA 150 Law Institute of Victoria Limited v Kerridge [2005] VLPT 5 Northside Veterinary Property Pty Ltd v Dalmacija Sydney Croatian Club Ltd [2022] NSWSC 589 Pavlovic v Universal Music Australia Pty Ltd (2015) 90 NSWLR 605; [2015] NSWCA 313 Re Keith Bray Pty Ltd (1991) 5 ACSR 450 Roxborough v Rothmans of Pall Mall (2001) 208 CLR 516; [2001] HCA 68 Sinochem International Oil (London) Co Ltd v Mobil Sales and Supply Corp (Sinochem International Oil Co Ltd, third party) [2000] 1 All ER (Comm) 474; [2000] 1 Lloyd's Rep 339 Traxys Europe SA v Balaji Coke Industry Pvt Ltd [2011] FCA 1132 Young v Queensland Trustees Ltd (1956) 99 CLR 560; [1956] HCA 51 Texts Cited: R Derham, Derham on the Law of Set-Off (4th ed, 2010) Category: Principal judgment Parties: 2019/374869: Access Training Group Limited (Plaintiff) James Michael Jane (First Defendant) Judith Anne Jane (Second Defendant)