Mirzikinian v Tom & Bill Waterhouse Pty Ltd [2009] NSWCA 296

New South Wales Court of Appeal

CITATION: Mirzikinian v Tom & Bill Waterhouse Pty Ltd [2009] NSWCA 296 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 28 August 2009

JUDGMENT DATE: 8 October 2009

JUDGMENT OF: Ipp JA at 1; Tobias JA at 79; McColl JA at 80

1. Leave to appeal granted DECISION: 2. Appeal dismissed with costs 3. The $250,000 paid by the appellant into Court as security for the judgment debt be paid to the respondent, subject to this order being stayed for 14 days from the date on which this judgment is delivered. 4. Entitlement to interest on $250,000 to be decided in the District Court

CATCHWORDS: DEED – delivery - whether a document (the Deed) was delivered as a deed – whether the appellant intended to execute the Deed as his deed – circumstances establish the appellant intended to execute the Deed as his deed - DEED – escrow – whether the appellant delivered the Deed in escrow – acknowledgement of indebtedness and undertaking to pay given unconditionally – whether the Deed may be construed to ascertain whether it was delivered, implicitly, in escrow – whether grantee of a deed may sue grantor even though grantee did not execute the deed and the deed contained cross-covenants- whether an agreement means that a deed has been delivered in escrow is to be determined by the express terms of the agreement - circumstances establish the Deed was not delivered in escrow - DEED – escrow - escrow conditions fulfilled – whether the appellant had revoked the Deed by making a counter-offer before the service of the statement of claim – not open to appellant to revoke the Deed – whether the Deed had expired before the conditions were fulfilled- mere lapse of time before execution of the Deed by the respondent did not allow appellant to renounce it - DEED – whether the Deed was illegal – respondent not licensed when performing book keeping services - whether the debts incurred illegally– Deed silent on the identity of bookmaker – nothing in Deed inconsistent with the services having been performed by a person whose claim had been assigned to the respondent