Weige v Cupton Pty Ltd [2012] NSWCA 414

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Weige v Cupton Pty Ltd [2012] NSWCA 414 Hearing dates: 23 November 2012 Decision date: 12 December 2012 Before: Basten JA at [1]; Ward JA at [2]; Sackville AJA at [78] Decision: Appeal dismissed with costs [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: APPEAL - credibility finding by trial judge - whether glaringly improbable or inconsistent with incontrovertible evidence - whether trial judge failed to use or misused advantage in assessing witness' testimony

EQUITY - purchase by one co-owner of shares in company holding other half-interest in trust - whether purchaser obtained beneficial interest in trust property - whether bona fide purchaser for value

REAL PROPERTY - indefeasibility of title - transfer by company of interest in land held on trust to sole shareholder of company - whether interest held as constructive trustee - Real Property Act 1900 (NSW), s 42(1)

TRUSTS - resulting trust - de facto relationship - contributions to purchase of property - whether loan moneys constituted contribution of one party or loan to purchaser facilitated by that party Legislation Cited: Corporations Act 2001 (Cth) Real Property Act 1900 (NSW) Cases Cited: Abalos v Australian Postal Commission [1990] HCA 47; 171 CLR 167 Barnes v Addy (1874) LR 9 Ch App 244 Buffery v Buffery & Anor [2006] NSWSC 1349 Calverley v Green [1984] HCA 81; 155 CLR 242 CSR Ltd v Della Maddalena [2006] HCA 1; 224 CLR 1 David Securities Pty Ltd v Commonwealth Bank of Australia [1992] HCA 48; 175 CLR 353 Drever v Drever [1936] ALR 446 Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; 230 CLR 89 Fox v Percy [2003] HCA 22; 214 CLR 118 Pavey & Matthews Pty Ltd v Paul [1987] HCA 5; 162 CLR 221 Shepherd v Doolan [2005] NSWSC 42 Category: Principal judgment Parties: Gregory William Weige (First Appellant) Derek Heelan (Second Appellant) Paul Miller (Third Appellant) Cupton Pty Ltd (First Respondent) Nicola Sproule (Second Respondent) Representation: Counsel: C K Stewart (Appellants) P Menadue (Respondents) Solicitors: PJG Solicitors (Appellants) Penmans Solicitors (Respondents) File Number(s): CA 12/016719 Decision under appeal Citation: Derek Heelan v Cupton Pty Ltd [2011] NSWSC 1053 Date of Decision: 2012-10-14 00:00:00 Before: Sackar J File Number(s): SC 10/152804