Labracon Pty Limited v Cuturich & Anor [2013] NSWSC 97

Supreme Court New South Wales

Medium Neutral Citation: Labracon Pty Limited v Cuturich & Anor [2013] NSWSC 97 Hearing dates: 10, 11, 12 October 2012 Decision date: 26 February 2013 Jurisdiction: Equity Division Before: Lindsay J Decision: Judgment for the Plaintiff. Direct that parties bring in short minutes of orders giving effect to these Reasons Catchwords: CONTRACTS - general contractual principles - illegal and void contracts - plaintiff was assignee of two loan agreements between assignor as lender and first defendant as borrower, charging land owned by first defendant - plaintiff was the assignee of a deed of charge between assignor as lender, first defendant as borrower, and second defendant as chargee - whether loan agreements and deed of charge were unenforceable as elements of a sham arrangement intending to defraud creditors of the defendants. ESTOPPEL - estoppel by deed - in general - plaintiff was the assignee of two loan agreements and a deed of charge acknowledging the receipt of loan moneys by the first defendant from the assignor - whether the defendants were bound by any estoppel from denying receipt of the moneys. ESTOPPEL - estoppel by deed - in general - whether estoppel by deed is a subset of estoppel by convention. DEEDS - what amounts to a deed - generally - defendants' execution of two instruments was not attested by a non-party witness - section 38(1) of the Conveyancing Act 1919 (NSW) does not require each and every signature to have been attested by a non-party witness - a party who knowingly takes the benefit of a deed may be bound by it even without execution of it. DEEDS - other matters - enforceability of receipt clause - plaintiff took assignment of lender's rights under the deeds without notice of any deficiency in amounts paid to borrower compared with amounts acknowledged as having been received - whether plaintiff was entitled to a judgment in debt in the sum of the amounts acknowledged as having been received Legislation Cited: Conveyancing Act 1919 NSW, ss 39-40, s 36C, Part 3(ss 38-51A) ss 116-118 Real Property Act 1900 NSW, s 36(11) Cases Cited: Effem Foods Pty Limited v Trawl Industries of Australia Pty Limited (1993) 43 FCR 510 (1992) 36 FCR 406) Ramsay v Pigram (1968) 118 CLR 271. Read Johnson; ex-parte Greendale Engineering & Cables Pty Limited (1967) 11 FLR 335 Aikman v Brown (1973) 1 ACTR 121. Cf, Pethybridge v Stedikas Holdings Pty Limited [2007] NSWCA 154 Greer v Kettle [1938] AC 156 at 170-172; Cousens v Grayridge Pty Limited [2000] VSCA 96 at [58] Reliance Finance Corporation Pty Ltd v Heid [1982] 1 NSWLR 466 at 483C-484B Heid v Reliance Finance Corporation Pty Ltd (1983) 154 CLR 326 Ellison v Vukicevic (1986) 7 NSWLR 104 at 112D-G,107G-108D Vukicevic v Alliance Acceptance Co Limited (1987) 9 NSWLR 13. Lady Nass v Westminster Bank Limited [1940] AC 366 at 373 Federal Commissioner of Taxation v Taylor (1929) 42 CLR 80 at 85 and 87 Hooker Industrial Developments Pty Limited v Trustees of the Christian Brothers [1977] 2 NSWLR 109 at 116F, 118D-119B and 119E-F 400 George Street (Qld) Pty Ltd v BG International Ltd [2010] 2 Qd R 302 Legione v Hateley (1983) 152 CLR 406 at 430 Thompson v Palmer (1933) 49 CLR 507 at 547 Newbon v City Mutual Life Assurance Society Ltd (1935) 52 CLR 723 at 734-735 Grundt v Great Boulder Pty Gold Mines Ltd (1937) 59 CLR 641 at 674-677) Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 at 455-456 [101] note 92 Partridge v McIntosh and Sons Ltd (1933) 49 CLR 453 at 462-463, 465 and 466-467 Mirzikinian v Waterhouse Pty Ltd [2009] NSWCA 296 Segboer v AJ Richardson Properties Pty Ltd [2012] NSWCA 253 Texts Cited: Halsbury's Laws of Australia, (Lexis Nexis, Australia), Title No 140 "Deeds and Other Instruments Norton on Deeds; Needham, "Deeds - Formalities" (1985) 1 Aust Bar Rev 3 Norton on Deeds (2nd ed, 1928), pp 226-228, and p 213 (para 4) Annotated Conveyancing and Real Property Legislation, NSW (Lexis Nexis, Australia, 2012) JS Ewart (An Exposition of the Principles of Estoppel by Misrepresentation (Stevens & Sons, London, 1900), p 1) Handley (Estoppel by conduct and election (2006), para [1-007] note 24 on p 4 Odgers' Construction of Deeds and Statutes (Sweet & Maxwell, London, 5th ed, 1967), Part I; pp 165-167 Coke on Littleton, para [3526] second rule Category: Principal judgment Parties: Labracon Pty Ltd (Plaintiff) Melissa Cuturich (First Defendant) Classique Property Group Pty Ltd (Second Defendant) Representation: McLachlan Thorpe File Number(s): 2011/330149