Anthony James Gee v David Cam [2009] NSWSC 683

New South Wales Supreme Court

CITATION : Anthony James Gee v David Cam [2009] NSWSC 683

HEARING DATE(S) : 7 July 2009 JURISDICTION : Equity Division

JUDGMENT OF : Rein J

EX TEMPORE JUDGMENT DATE : 8 July 2009

DECISION : Judgment for the plaintiff for the sum of $645,000 plus interest and costs.

CATCHWORDS : CONTRACTS – general contractual principles – consideration – offer to obtain for the plaintiff a beneficial interest in shares in a company controlled by the defendant – total failure of consideration – no issue of principle

CATEGORY : Principal judgment

Anthony James Gee (Plaintiff) PARTIES : David Cam (First Defendant) Fifth Estate Holdings Pty Ltd (Second Defendant)

FILE NUMBER(S) : SC 1249/08

COUNSEL : G Carolan (Plaintiff) First Defendant in person

SOLICITORS : North Shore Lawyers (Plaintiff)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

Rein J

Date of Hearing: 7 July 2009 Date of Judgment: 8 July 2009

1249/08 Anthony Janes Gee v David Cam & anor

JUDGMENT (EX TEMPORE) 1 REIN J: Mr Gee seeks to recover the amount of A$645,000 plus interest from Mr Cam. Mr Gee is represented by Mr Carolan of counsel. Mr Cam represented himself at the hearing. 2 The proceedings concern a New Zealand corporation Perfectus Solutions Ltd engaged in the sale of computer software (which I shall refer to as "Perfectus Solutions") of which Mr Cam was a director and, through a trust company of which he was a director and controller, shares in which he had a beneficial interest. 3 Mr Cam solicited from Mr Gee, who was a personal friend of his, an investment in Perfectus Solutions. The proposal for investment is found at pp 2 – 4, 5 – 28 of Exhibit A and is dealt with by Mr Gee in paras 4, 5, 6, 7 and 10 of his affidavit of 20 November 2008, and was to result in Mr Gee holding an interest in Perfectus Solutions equal to Mr Cam's beneficial interest. The document provided by Mr Cam makes reference to Fifth Estate Trust ("FET") a trust controlled by Fifth Estate Trust Nominees Ltd ("Nominees") which was controlled by Mr Cam. Mr Gee accepted that new the shares in Perfectus Solutions might be purchased by FET with 50% to be held beneficially for him: see T9 – T10. 4 There is no dispute that Mr Gee did in fact, by a number of instalments, and at the direction of Mr Cam, pay the amount of $645,000 into the account of Fifth Estate Holdings Pty Ltd ("FEH"), a company of which Mr Cam is the sole director and sole shareholder: see pp 1 – 4 of Mr Holmes' affidavit of 7 July 2009. FEH is the second defendant to the proceedings but has been placed in liquidation and the plaintiff on a previous occasion indicated that it did not propose to proceed against FEH. 5 There is no dispute that Mr Gee has never received from Mr Cam, FEH or Nominees or any other entity with which Mr Cam is connected: (a) any certificates of shares in Perfectus Solutions or any other company of the Perfectus Group;