WILLIAMS v WILLIAMS [1989] NSWCA 236

WILLIAMS v WILLIAMS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MEAGHER, SAMUELS and PRIESTLEY JJA 15 March 1989, 15 March 1989

[1989] NSWCA 236

Contract — sale of shares — shares held by third party — whether alleged contract supported by consideration. ORDERS 1. Appeal dismissed with costs.

Meagher JA In this matter the plaintiff is the father of the defendant and hassought in his statement of claim to seek certain relief based on the sale of a share in a company. The share was not registered in the name of the son, the defendant in the case, but was in the name of a third party.

That claim as originally framed asked for declarations that the share in question was held on trust for the plaintiff father.

Evidence was given at the trial which indicated that in fact the share had been settled, (if it matters, by the plaintiff himself) on a trust for certain infants, who were not parties to the litigation.

This morning Mr Palmer, for the appellant plaintiff, very properly agreed that the sort of relief sought in the statement of claim could not proceed in the absence of the trustee and of the beneficiaries under that trust. However, he has suggested that an agreement of a kind rather different from that alleged in the statement of claim should be found by this Court. After some discussions, he again very properly withdrew that submission and urged the Court to deal with the matter solely on the basis on which it is pleaded in paragraph 3 of the statement of claim. Paragraph 3 of the statement of claim alleged that in or about March 1979 there was an agreement between the plaintiff, the father, and the defendant, the son, that the plaintiff would purchase the share in question, which was then standing in the name of two other persons, and that the plaintiff father would pay to those persons sufficient monies to repay the amount standing to their credit in a loan account. That was the submission which this Court said it would hear. There is certainly evidence, which Mr Palmer refers to, which justifies the claim set out in paragraph 3 of the statement of claim.