Kekatos v Stafford [2009] NSWCA 219

New South Wales Court of Appeal

CITATION: Kekatos v Stafford [2009] NSWCA 219

HEARING DATE(S): 13 July 2009

JUDGMENT DATE: 29 July 2009

JUDGMENT OF: Allsop ACJ at 1; Giles JA at 109; Campbell JA at 113

DECISION: 1. Appeal dismissed with costs. 2. Any application to vary the order for costs be made by notice of motion filed and served within 7 days.

CATCHWORDS: EQUITY – assignments – parties held charge over assets of a jointly owned company which owned land – transfer of interests in the charge from the respondents to the appellant - whether appellant took absolute title or held the interests on trust for the respondents – no trust document executed – no express trust on face of transfer - equitable estoppel – appellant estopped from asserting that took the interests other than as trustee – failure of underlying business agreement does not stop the operation of the deed of assignment - products of the assignment were royalties from use of land and settlement proceeds from sale of land - appellant held product of assignment on trust proportionately as per the parties' original intention - EQUITY – assignments – assignment of interest under a mortgage – acquisition of mortgage facilitated potential acquisition of the land by removing mortgager as potential obstacle to sale - equitable estoppel – appellant estopped from asserting that took the interests other than as trustee – product of the assignment held on trust proportionately as per the parties' original intention - EQUITY – remedies – equitable remedy appropriate in the circumstances - APPEAL – case on appeal not run below

Conveyancing Act 1919 (NSW) LEGISLATION CITED: Fair Trading Act 1987 (NSW) Frustrated Contracts Act 1978 (NSW)