Tran v Tran [2008] NSWSC 628

New South Wales Supreme Court

CITATION : Tran v Tran [2008] NSWSC 628

HEARING DATE(S) : 10 to 13 June 2008

JUDGMENT DATE : 23 June 2008

JURISDICTION : Equity Division

JUDGMENT OF : Palmer J

DECISION : Plaintiff fails to prove making of statements.

CATCHWORDS : COLLATERAL CONTRACT – REPRESENTATIONS – Whether Defendant or his agent made representations by way of collateral contract or inducing Plaintiff to enter Deed – questions of credit – no question of principle.

LEGISLATION CITED : Fair Trading Act 1987 (NSW) – s 41, s 72

CATEGORY : Principal judgment

PARTIES : Minh Chanh Tran (Plaintiff) Minh Dat Tran (Defendant)

FILE NUMBER(S) : SC 5604/06

COUNSEL : T.A. Alexis SC, S.M. Golledge (Plaintiff) N.A. Cotman SC, G.P. George (Defendant)

SOLICITORS : Metrop Lawyers (Plaintiff) Pateman Legal (Defendant)

5604/06 Tran v Tran

JUDGMENT 23 June, 2008

Introduction and issues

1 By deed dated 28 May 2002 the Plaintiff and the Defendant entered into a partnership for the development of real estate. The partnership acquired two properties for development, one at North Parramatta, the other at Pennant Hills. The partners made contributions of capital to the partnership account and borrowed money to finance the development of the properties. By the end of 2004 they had fallen into dispute about their contributions to the partnership account. 2 On 22 February 2005, the parties executed a deed which purported to terminate their relationship as to the Parramatta property, but not as to the Pennant Hills property ("the Termination Deed"). In broad terms, under the Termination Deed the Plaintiff covenanted to pay the Defendant the sum of $1,983,638 at the expiration of six months, in consideration of which the Defendant relinquished his interest in the Parramatta property to the Plaintiff. 3 The Plaintiff did not pay the Defendant in accordance with the Termination Deed. The Defendant continued to make contributions to the partnership account in respect of the Pennant Hills property but not in respect of the Parramatta property. Loans procured for the development of both properties went into default. 4 On 2 November 2006 the Plaintiff commenced proceedings for a declaration that the partnership had been dissolved and he sought consequential orders for the appointment of a receiver to the partnership and for winding up of the partnership under the direction of the Court. 5 On 6 February 2007, receivers to the partnership assets were appointed by consent. The receivers have sold both the Parramatta and the Pennant Hills properties. After repayment of bank loans secured on the properties, the costs of sale and the receivers' fees and expenses, a balance of $1,264,882 remains and has been paid into Court pursuant to a consent order made on 1 June 2007. 6 The parties remain in dispute as to how the funds in Court should be distributed in accordance with their respective partnership interests. The Defendant asserts that: