Camden Nurseries Pty Ltd v Aussie Growers (Aust) Pty Ltd [2017] NSWSC 1770

Supreme Court New South Wales

Medium Neutral Citation: Camden Nurseries Pty Ltd v Aussie Growers (Aust) Pty Ltd [2017] NSWSC 1770 Hearing dates: 13 December 2017 Date of orders: 15 December 2017 Decision date: 15 December 2017 Jurisdiction: Common Law Before: Adamson J Decision: See paragraph [65]. Catchwords: CONTRACT – avoidance of contract as sham – circumstances warranting characterisation of transaction as sham – HELD – executed contract which provided for transfer of property to sixth defendant did not reflect true intentions of the parties to become co-owners

REAL PROPERTY – order for withdrawal of caveat made in respect of contract found to be a sham

REAL PROPERTY – equitable mortgage – right of equitable mortgagee to sale and possession

COSTS – provision for application for costs to be specified in gross sum Legislation Cited: Bankruptcy Act 1966 (Cth), s 58 Civil Procedure Act 2005 (NSW) ss 98, 101 Conveyancing Act 1919 (NSW), ss 66G, 109 Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015, r 27.2 Real Property Act 1900 (NSW), s 74MA Uniform Civil Procedure Rules 2005 (NSW), r 42.1 Cases Cited: Baker-Crooks v Separovich [2017] NSWSC 708 Barrak Corporation Pty Ltd v The Kara Group of Companies Pty Ltd [2014] NSWCA 395 Commercial and General Acceptance Ltd v Nixon (1981) 152 CLR 491; [1981] HCA 70 Equuscorp Pty Ltd v Glengallan Investments Pty Ltd (2004) 218 CLR 471; [2004] HCA 55 Harden Shire Council v Richardson [2012] NSWSC 622; (2012) 188 LGERA 200 Jones v Dunkel (1959) 101 CLR 298 King Investment Solutions v Hussain [2005] NSWSC 1076 Sharrment Pty Ltd v Official Trustee in Bankruptcy (1988) 18 FCR 449 Snook v London & West Riding Investments Ltd [1967] 2 QB 786 Category: Principal judgment Parties: Camden Nurseries Pty Ltd (ACN 166506752) (First Plaintiff) Craig Douglas Wilson (Second Plaintiff) Julie Maree Wilson (Third Plaintiff) Aussie Growers (Aust) Pty Ltd (ACN 145 173 539) (First Defendant) Camden Herbs & Nursery Pty Limited (ACN 615 436 961) (Second Defendant) Louise Ann Cassar (Third Defendant) Christopher John Palmer in his capacity as trustee of the bankrupt estate of Jake Paul Anthony Cassar (Fourth Defendant) La Trobe Financial Asset Management Limited (ACN 007 332 363) (Fifth Defendant) Marjan Corporations Pty Ltd (Sixth Defendant) Representation: Counsel: A Crossland (Plaintiffs) R Pearson (Solicitor) (Third and Sixth Defendant) S Cominos (Fourth Defendant)