Vasilis Floros Moshos v Kenneth Geoffrey French (No.2) [2014] NSWSC 862

Supreme Court New South Wales

Medium Neutral Citation: Vasilis Floros Moshos v Kenneth Geoffrey French (No.2) [2014] NSWSC 862 Hearing dates: 5-8 May 2014 Decision date: 27 June 2014 Jurisdiction: Equity Division Before: Darke J Decision: No binding contract entered into, or trust created, as alleged by the plaintiff. Separate questions answered accordingly. Catchwords: CONTRACT - formation - oral agreement said to be partly evidenced in writing - binding agreement not established Legislation Cited: Uniform Civil Procedure Rules r 28.2 Cases Cited: Vasilis Floros Moshos v Kenneth Geoffrey French [2014] NSWSC 549 Category: Principal judgment Parties: Vasilis Floros Moshos (plaintiff)

Kenneth Geoffrey French (first defendant) Local Appliance Rentals Pty Ltd (second defendant) Representation: Counsel: Mr T M Jucovic QC (plaintiff) Mr M Cashion SC, Mr J Baird (defendants) Solicitors: Kings Law Group (plaintiff) Kosmin & Associates (defendants) File Number(s): 2013/290093 Publication restriction: Nil

Judgment

Introduction 1The plaintiff (Mr Moshos), by an Amended Statement of Claim, alleges that in about early November 2007 he entered into a binding contract with the first defendant (Mr French). The agreement alleged is to the effect that Mr French would incorporate a company to operate a household goods rental business, all the shares in which would be held by Mr French pending transfer of 50% of the shares to Mr Moshos upon the company obtaining what is described as a Centrepay facility. 2The agreement is alleged to have been made in the course of discussions held between Mr Moshos and Mr French on 31 October 2007 and 5 November 2007. The agreement is said to be partly evidenced in writing by certain emails passing between them on 1 November 2007. Mr French denies that any binding agreement as alleged was reached in the course of the discussions. 3On 7 November 2007 Mr French in fact incorporated a company, Local Appliance Rentals Pty Ltd, which is the second defendant in the proceedings. Mr French became the sole director and the holder of all of the ten issued shares in the company. He remains the owner of those shares. 4Mr Moshos seeks specific performance of the alleged agreement. In particular, orders are sought compelling Mr French to transfer 50% of the shares in the company to Mr Moshos. In the alternative, Mr Moshos seeks a declaration that Mr French holds half of his shareholding on trust for him. Mr Moshos also claims damages for breach of contract, an account in respect of the shareholding held on trust, and equitable damages. Claims for damages and other relief under the Australian Consumer Law are no longer pursued. 5On 28 February 2014, an order was made pursuant to Uniform Civil Procedure Rules r 28.2 "that there be a separate hearing on liability". During the course of the hearing, I ruled that the separate hearing was to determine the following questions: (1)Did the plaintiff and the first defendant enter into a binding contract as alleged, and if so, on what terms? (2)Is the first defendant in breach of any such contract? (3)Was any trust created in respect of the first defendant's shares in the second defendant as alleged, and if so, on what terms? (4)Is the first defendant in breach of any such trust?