Perpetual Trustee Company Ltd v Papantoniou [2014] NSWSC 685

Supreme Court New South Wales

Medium Neutral Citation: Perpetual Trustee Company Ltd v Papantoniou [2014] NSWSC 685 Hearing dates: 12-16 November 2012; 7-8,12 February 2013 Decision date: 30 May 2014 Jurisdiction: Common Law Before: Campbell J Decision: In the first cross-claim brought by Robert Brown (1)I make an order under s 7(1)(b) Contracts Review Act 1980 declaring void ab initio the contract between Robert Brown, James Brown and Stella Papantoniou to the extent to which it provides for the liability of Mrs Papantoniou for the loan from Perpetual Trustee Company Limited to be borne by Robert Brown and James Brown. (2)I order that Stella Papantoniou pay compensation to Robert Brown in the sum of $151,410.74 together with interest under s 100 Civil Procedure Act 2005 from 18th March 2011 until today. (3)I grant the parties liberty to apply if they are unable to agree upon the amount of interest due. (4)I order Mrs Papantoniou to pay the costs of Mr Robert Brown on the ordinary basis forthwith after they have been agreed or assessed. The third cross-claim brought by Robert Brown as Executor of the Estate of James Brown (1)I make an order under s 7(1)(b) Contracts Review Act 1980 declaring void ab initio the contract between Robert Brown, James Brown and Stella Papantoniou to the extent to which it provides for the liability of Mrs Papantoniou for the loan from Perpetual Trustee Company Limited to be borne by Robert Brown and James Brown. (2)I order that Stella Papantoniou pay compensation to the Estate of the late James Brown in the sum of $109,642.26 together with interest under s 100 Civil Procedure Act 2005 from 18th March 2011 until today. (3)I grant the parties liberty to apply if they are unable to agree upon the amount of interest due. (4)I order Mrs Papantoniou to pay the costs of the Estate of the late James Brown on the ordinary basis forthwith after they have been agreed or assessed. The second cross-claim brought by Mrs Stella Papantoniou (1)Declare that Mrs Papantoniou is the party entitled to the funds held on trust by Norton Rose, lawyers in the sum of $58,596.31 and interest (if any). (2)Upon the solicitors first being satisfied that Mrs Papantoniou has satisfied order (2) pronounced today in each of the first and third cross-claim I direct Norton Rose to pay the funds referred to in order (1) to Mrs Papantoniou, whose receipt whereof will discharge North Rose's obligations under the orders made on 16th November 2010. (3)The second-cross claim is otherwise dismissed with Mrs Papantoniou to pay the costs of the first and second cross-claimants on the ordinary basis forthwith after they have been agreed or assessed. Catchwords: CONTRACT - termination - harsh or unjust - contracts review act - where party entered into joint venture using borrowed funds guaranteed by other party Legislation Cited: Civil Procedure Act 2005 (NSW), s 100 Contracts Review Act 1980 (NSW), ss 7,9 Evidence Act 1995 (NSW), s 140 Family Provision Act 1982 (NSW) (repealed) Cases Cited: Allianz Australia Insurance Limited v GSF Australia Pty Ltd (2005) 221 CLR 568; Briginshaw v Briginshaw (1938) 60 CLR 336; Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41; Perpetual Trustee Co Limited v Khoshaba [2006] NSWCA 41; Travel Compensation Fund v Tambree (t/as R Tambree & Associates) [2005] HCA 69; (2004) 224 CLR 627; SH Lock Australia Limited v Kennedy (1988) 12 NSWLR 482 West v AGC (Advances) Limited (1986) 5 NSWLR 610 Category: Principal judgment Parties: Robert Joseph Patrick Brown (First Cross-Claimant) Robert Joseph Patrick Brown as executor of the Estate of the late James Anthony Thomas Brown (Third Cross-Claimant) Styliani Papantoniou (First Cross-Defendant) Representation: Counsel: C Mantziaris with M Machonachie (First and Third Cross-Claimants) J Merkel (First Cross-Defendant) Solicitors: Barwick Boitano Lawyers (First and Third Cross-Claimant) Northern Suburbs Lawyers (First Cross-Defendant) File Number(s): 2010/28341