Electric Pty Ltd atf the Elias Family Trust v Quinn [2025] NSWSC 69

Supreme Court New South Wales

Medium Neutral Citation: Electric Pty Ltd atf the Elias Family Trust v Quinn [2025] NSWSC 69 Hearing dates: 10 February 2025 Decision date: 19 February 2025 Jurisdiction: Equity - Commercial List Before: Stevenson J Decision: Plaintiff entitled to judgment for $1.5 million Catchwords: CONTRACTS – formation – acceptance of offer – agreement by defendant to purchase plaintiff's units in unit trusts – agreements for the sale of the units for specified consideration - further deed expressed to provide additional consideration for the sale – whether defendant executed that deed – when defendant executed that deed – whether that deed is binding on the defendant Cases Cited: Commissioner of Taxation (Cth) v Sara Lee Household & Body Care (Australia) Pty Ltd (2000) 201 CLR 520; [2000] HCA 35 Donau Pty Ltd v ASC AWD Shipbuilder Pty Ltd (2019) 101 NSWLR 679; [2019] NSWCA 185 Pittmore Pty Ltd v Chan; Chan v Tan (2020) 104 NSWLR 62; [2020] NSWCA 344 Sanmik Food Pvt Ltd v Alfa Laval Australia Pty Limited [2025] NSWCA 7 Category: Principal judgment Parties: Electric Pty Limited as trustee for the Elias Family Trust (Plaintiff) Simon John Quinn (Defendant) Representation: Counsel: M Thompson (Plaintiff) N Kidd SC (Defendant)

Solicitors: Di Girolamo Lawyers (Plaintiff) Matthews Dalton Lawyers (Defendant) File Number(s): 2023/423444

JUDGMENT 1. In late 2019, Mr Ben Elias and the defendant, Mr Simon Quinn, agreed to acquire and develop two properties, one at Badgerys Creek and one at 301 Castlereagh Street. 2. The mechanism they adopted was to establish two unit trusts known as the "BC Land Trust No. 1" and the "301 Castlereagh Street Trust", in which their associated companies would hold units. In the case of Mr Elias, those units were held by the plaintiff, Electric Pty Ltd as trustee for the Elias Family Trust. Electric held 50 of the 100 units in the 301 Castlereagh Street Trust and 45 of the 100 units in the BC Land Trust No. 1. An entity associated with Mr Quinn held the remaining 50 units in the 301 Castlereagh Street Trust and 45 of the remaining units in the BC Land Trust No. 1. Entities associated with the Trusts' solicitors, who play no role in these proceedings, held the remaining 10 units in the BC Land Trust No. 1. 3. Electric loaned significant sums to the trustees to fund the acquisition and development of the two properties. 4. Mr Elias also provided personal guarantees for additional monies loaned to the trustees of the Trusts by commercial lenders. 5. In September 2020, Mr Elias approached Mr Quinn to sell Electric's interest in the two Trusts. 6. Negotiations followed and various documents were executed. Amongst those documents were an "Agreement For Sale of Unit Trust Units" in relation to each of the Trusts. The final version of these were executed by both Mr Elias and Mr Quinn on 15 March 2021. Pursuant to those documents Mr Quinn [1] agreed to "make available" to each trustee sufficient funds to repay the amount owing by that trust to Electric and each trustee agreed to use those funds to repay those loans: $267,500 in the case of the 301 Castlereagh Street Trust and $1,220,517.67 in the case of the BC Land Trust No. 1. 7. The sale of Electric's units to Mr Quinn settled on 19 July 2021, on which date those payments were made. 8. The question is whether, in the events that have happened, Mr Quinn is liable to pay Electric a further $1.5 million in relation to the sale of Electric's units in the BC Land Trust No. 1. 9. There is in evidence a "Deed" bearing the date 11 January 2021, evidently executed by Mr Quinn in the presence of a witness, Mr Roy Costigan, which appears to impose that obligation on Mr Quinn. 10. The Deed recites: "A. Electric and Quinn are parties to an agreement [f]or the sale by Electric of 45 units in the BC Land Trust Number 1 to Quinn (the BC Agreement). B. The parties agree that in addition to the consideration paid under the BC Agreement for the units by Quinn to Electric, Quinn shall do all things as agreed under this Deed for the benefit of Electric." 1. The "operative provisions" of the Deed are: "2. Operative provisions (a) Quinn shall procure that Electric is issued with 7,500,000 shares in Affinity Energy and Health Limited (AEB) at the list price of $0.20, with effect once that entity achieves a re-compliance listing on the Australian Stock Exchange. (b) … (c) In the event that the obligations under clause 2(a) are not performed within 730 days from the date of this deed, then Quinn must pay to Electric the sum of $1,500,000. (d) … (e) …" 1. In his affidavit evidence, Mr Quinn was equivocal as to whether he had ever executed the Deed. Thus, he said: "I refer to the executed Deed dated 11 January 2021 which is annexed to the affidavit of Mr Elias. I have no recollection of signing that document and do not believe that I did." 1. In his affidavit, Mr Quinn was, nonetheless, clear that he did not execute the Deed on the evening of 15 March 2021, as Mr Elias deposed in evidence to which I will shortly refer. 2. However, it emerged during the hearing that Mr Quinn's recollection was more nuanced. 3. Thus, I had this exchange with Mr Kidd SC, who appeared for Mr Quinn: "HIS HONOUR: All right. Well, Mr Kidd, is Mr Quinn still contending he did not sign that document? KIDD: I think-- HIS HONOUR: I noticed your submissions were very nuanced. KIDD: Yes. I think having regard to the evidence, it will be hard for us to persuade your Honour that - although Mr Quinn believes he didn't sign it - he didn't, having regard to his signature appearing on the document. And that's on the assumption that Mr Costigan …-- HIS HONOUR: Seems pretty sure. KIDD: Gives evidence, which we assume he will." 1. And later: "HIS HONOUR: So, what's his position; that he did sign? KIDD: Sorry, your Honour? HIS HONOUR: So, Mr Quinn is saying he signed on 11 January. KIDD: Probably, is the answer. Probably, yes. More probably than not he signed on 11 January." 1. In cross-examination, Mr Quinn agreed that "[he] could have possibly signed it in January". 2. When shown the original of the Deed, Mr Quinn gave this evidence: "Q. Can you turn to the signature page of that document, please. A. Yes. Q. That's your signature that appears at the bottom of that page, doesn't it, Mr Quinn? A. Well, it certainly looks like it." 1. What is clear, and undisputed, is that whenever it was that Mr Quinn executed the Deed, his signature was witnessed by Mr Roy Costigan; and that this occurred on only one occasion. 2. Mr Elias was clear about this. He gave this evidence in his affidavit: "[On 15 March 2021] I was present in Mr Quinn's office located at Level 7, 301 Castlereagh Street Sydney, and observed him execute the Deed. Mr Roy Costigan and another person were also present with me. I observed Mr Costigan witness Mr Quinn's signature on the Deed." 1. As I have said, the Deed bears the date 11 January 2021. Mr Elias gave this evidence about that: "On the front page of the Deed … is a handwritten date: 11th January 2021. I believe I wrote that date on the Deed in January 2021 to signify the date I provided the Deed to my solicitor, Mr Peter Hodges of Mills Oakley. That date was not amended or corrected when the Deed was executed by Mr Quinn on 15 March 2021, and this was an oversight on my part." (Emphasis in original.) 1. Mr Costigan, to whose evidence I will return, was also clear that the occasion on which he witnessed Mr Quinn's signature on the Deed was in March 2021. 2. Mr Kidd advanced a number of arguments as to why the Deed was binding on Mr Quinn, assuming that he had executed it. These included whether the Deed was delivered subject to an unfulfilled condition, [2] whether the Deed was collateral to an earlier, superseded agreement concerning the sale of the units, [3] whether the Deed had been recalled, [4] and whether the Deed was subject to a condition that consent of Mr Quinn's financier be obtained. 3. As Mr Kidd very fairly accepted in argument, all but the last of those arguments depended on establishing that Mr Quinn had executed the Deed on or about 11 January 2021, the date it bears, rather than on 15 March 2021, as both Mr Elias and Mr Costigan deposed. 4. Thus, the critical question is when, rather than if, Mr Quinn executed the Deed.