Simons Investments & Developments Pty Ltd as trustee for Simons Investments & Developments Trust v Penshurst Properties Pty Ltd as trustee for Penshurst Property Trust [2015] NSWSC 1110

Supreme Court New South Wales

Medium Neutral Citation: Simons Investments & Developments Pty Ltd as trustee for Simons Investments & Developments Trust v Penshurst Properties Pty Ltd as trustee for Penshurst Property Trust [2015] NSWSC 1110 Hearing dates: 24 – 26 June 2015 Date of orders: 11 August 2015 Decision date: 11 August 2015 Jurisdiction: Equity Division Before: Robb J Decision: Refer to paras [109] – [115] Catchwords: PROCEDURE – proceedings against second defendant stayed as she is an undischarged bankrupt – leave to proceed against second defendant not obtained – second defendant sole director and shareholder of first defendant – first defendant could not retain legal representation – Silver Pinball Pty Ltd replacement trustee of Penshurst Property Trust – Silver Pinball joined as third defendant – first defendant's cross claim dismissed – second defendant's cross claim stayed

DEEDS – cash loan made in favour of a person or persons associated with the first defendant – no written agreement – loan agreed to be repaid through joint venture property development – joint venture agreement between plaintiff, first defendant and a third party – deed executed provided that the plaintiff's loan be repaid out of first defendant's share of joint venture proceeds – proper construction of deed is that the first defendant is indebted to plaintiff and debt is to be paid from first defendant's first available profit share – deed created an equitable charge over first defendant's profit share – joint venture agreement and deed form part of the same transaction – obligation plaintiff undertook in joint venture agreement is consideration for first defendant's promise in deed – Silver Pinball as trustee of the Penshurst Property Trust liable to repay loan and interest to plaintiff – plaintiff entitled to proceeds paid into this Court by prior interlocutory orders