Moustach Pty Limited v Eddie Takchi [2015] NSWSC 2079

Supreme Court New South Wales

Medium Neutral Citation: Moustach Pty Limited v Eddie Takchi [2015] NSWSC 2079 Hearing dates: 18, 19, 20 August 2015 Date of orders: 21 August 2015 Decision date: 21 August 2015 Jurisdiction: Equity - Corporations List Before: Brereton J Decision: Impugned payments in paragraph 16 of statement of claim declared void; judgment for the first plaintiff. Catchwords: CONTRACTS – general contractual principles – formation of contract – oral contract – where claim relies on evidence of deceased which cannot be verified or contradicted – where no direct corroboration of oral contract – whether conduct of plaintiffs and defendants corroborate claimed oral contract – where plaintiff's recollection of conversation questionable – consideration – requirement that consideration move from promisee – where plaintiff provided no consideration – absence of intention to enter into legal relations – held, no contract formed; CORPORATIONS – directors' duties – misappropriation of funds of company for director's personal benefit – whether breach of duty to act bona fide in good faith for the benefit of the company as a whole – absence of authority to make payments; SUCCESSION – executors and administrators – proceedings against executors and administrators – where deceased liable for breach of directors' duties – whether liability enforceable against executor of deceased estate – where probate not yet granted – whether first defendant executor de son tort – where no evidence that first defendant intermeddled with deceased estate – where first defendant admits representative capacity on pleadings Legislation Cited: (CTH) Corporations Act 2001, s 180, s 181, s 182 Cases Cited: Ashton v Pratt (No 2) [2012] NSWSC 3 Bovaird v Frost [2009] NSWSC 337 Cash v The Nominal Defendant (1969) 90 WN (Pt 1) (NSW) 77 Evans v Braddock [2015] NSWSC 249 Plunkett v Bull [1915] HCA 14; (1915) 19 CLR 544 Webb v Ryan [2012] VSC 377 Category: Principal judgment Parties: Moustach Pty Limited ACN 051 870 789 (first plaintiff) Moussa Hanna Moussa (second plaintiff) Salima Moussa (third plaintiff) Arlette Takchi as executrix of the estate of the late Eddie Takchi (first defendant) Arlette Takchi (second defendant) Representation: Counsel: D C Eardley (plaintiffs) S J Stanton w M B Holmes (defendants)