Americana Leadership College v Coll [2005] NSWSC 15

New South Wales Supreme Court

CITATION : Americana Leadership College v Coll [2005] NSWSC 15

HEARING DATE(S) : 21/09/04

JUDGMENT DATE : 3 February 2005

Equity Division JURISDICTION :

JUDGMENT OF : Barrett J

DECISION : Short minutes to be brought in

CATCHWORDS : EQUITY - equitable charge imposed by court - whether product of implied contract - whether affected by limitation period applicable to "quasi contract" - date from which interest should run on secured moneys

Americana Leadership College Pty Limited v Coll [2003] NSWSC 295 CASES CITED : Giumelli v Giumelli (1999) 196 CLR 101 Johnson v The King [1904] AC 817

Americana Leadership College Pty Limited - Plaintiff PARTIES : Mary Annette Coll - Defendant

FILE NUMBER(S) : SC 5217/01

Mr M.R.J. Ellicott - Plaintiff COUNSEL : Mr S.Y. Reuben - Defendant

John R. Quinn & Co - Plaintiff SOLICITORS : Gary Cassim & Associates - Defendant

LOWER COURT JURISDICTION :

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

BARRETT J

THURSDAY, 3 FEBRUARY 2005

5217/01 – AMERICANA LEADERSHIP COLLEGE PTY LIMITED v MARY ANNETTE COLL JUDGMENT

1 On 15 April 2003, I published reasons for conclusions that, first, the plaintiff had failed to make out any of its claims to be recognised as the owner of the Elizabeth Bay property of which the registered proprietors are the defendant and her former husband, Francisco Coll, who died on 15 December 1999; second, that the plaintiff was entitled to an equitable charge for strata levies, local government rates and water rates by the plaintiff in respect of the property together with interest and, third; that the defendant's title to the property is charged with the payment of the sum payable by the defendant to the plaintiff, such sum to be determined by inquiry by a Master: see Americana Leadership College Pty Limited v Coll [2003] NSWSC 295. 2 Attempts were made by the parties to agree the sums concerned. Those attempts brought to light matters that the defendant later incorporated into new points of defence which, with leave, were filed on 7 May 2004. These raised issues of law on which I heard argument on 21 September 2004. 3 In paragraph 1 of the points of defence, the defendant admitted that the equitable charge secures amounts paid by the plaintiff for strata levies, local government rates and water rates since the death of Francisco Coll. The plaintiff sets out a quantification of those items ($23,976.13) and claims a set-off for the amount of agreed mesne profits ($13,650.00). These aspects of the points of defence call for no comment at this point. They do no more than to recognise the equitable charge, at least in respect of items arising after the death of Francisco Coll, and enter upon the territory of quantification which is for subsequent argument and determination. 4 Paragraphs 2 and 3 of the points of defence deny the plaintiff's entitlement to have secured by the equitable charge (and to enjoy the benefit of the equitable charge in respect of) any of the relevant outgoings paid by the plaintiff in respect of items arising before the death of Francisco Coll. This contention is advanced on two bases: first, that there was, while Francisco Coll lived, an agreement between him and the plaintiff that the plaintiff would have the benefit of possession of the property provided it paid the charges (paragraph 2); and, second, on the basis of laches (paragraph 3). I shall deal with these separately. 5 The contention in paragraph 2 is based on the proposition that the plaintiff can be protected by the equitable charge (to which I have already found it to be entitled) only in respect of moneys agreed (either expressly or by implication) to be paid to the plaintiff by the property owners (or, as the argument is put, by one of the joint tenants, being Francisco Coll). But this approach overlooks the foundation of the equitable charge as stated in my judgment. After identifying strata levies, local government rates and water rates as outgoings of the relevant kind (which I designated "the first category"), I said: "[84] There is a question whether the course of conduct involved in the making by the plaintiff of the payments in the first category justifies the imposition of a constructive trust or, as in Giumelli v Giumelli (1999) 196 CLR 101, some form of equitable charge in favour of the plaintiff in respect of first category sums expended by it.