Comlin Holdings Pty Ltd v Metlej Developments Pty Ltd [2018] NSWSC 761

Supreme Court New South Wales

Medium Neutral Citation: Comlin Holdings Pty Ltd v Metlej Developments Pty Ltd [2018] NSWSC 761 Hearing dates: 13, 14, 15, 21 November 2017; supplementary written submissions (last submissions received 30 November 2017) Date of orders: 28 May 2018 Decision date: 28 May 2018 Jurisdiction: Equity Before: Parker J Decision: Plaintiff's claim dismissed Catchwords: Partnership – rights and duties of partners inter se – Partnership Act 1892 (NSW) s 28 – obligation to account annually for partnership income Estoppel — estoppel by representation — equitable fraud – alleged agreement by plaintiff to allow the defendants to purchase certain land for redevelopment – alleged representation that the plaintiff would share in the profits of that development – equitable relief only available where no adequate remedy at law – remedies available in the law of partnership – no available claim based on estoppel or equitable fraud Land law – conveyancing – requirements of writing – contracts for the sale or other disposition of land or any interest in land – Conveyancing Act 1919 (NSW) s 54A – alleged agreement between successful bidder at auction with other parties to develop land – writing ordinarily required Land law – conveyancing – requirements of writing – exceptions – fraud on the Statute – no requirement of writing where detriment may be shown – loss of opportunity by being ready, able and willing to complete constitutes detriment – writing not required Limitation of actions – general – statute of limitations – claim against partners for share of alleged partnership property and profits of alleged partnership business – Limitations Act 1969 (NSW) s 15 – time runs from termination of the partnership business – alleged agreement to purchase and develop property – claim barred Limitation of actions – general – statute of limitations – claim for constructive trust relief based on alleged agreement to purchase and develop property with plaintiff to receive one-fifth share – Limitations Act 1969 (NSW) s 47 – time runs from the first act inconsistent with the alleged trust – claim not barred by statute Limitation of actions – equity – laches – concurrent questions with applicable statutory limitation periods – prejudice suffered by the defendant as a result of the passage of time – loss of evidence – death of a key witness – inordinate delay – speculative venture – difficulty of redoing the accounts of the partnership as a whole – defence established Contract – abandonment – alleged agreement to purchase property and develop it in partnership – no financial participation by plaintiff for more than a decade – alleged agreement abandoned Partnership – general – what constitutes partnership – agreement – alleged agreement to purchase and develop property in partnership – no partnership established on the evidence Legislation Cited: Conveyancing Act 1919 (NSW), ss 23C, 54A Income Tax Assessment Act 1936, ss 91, 92 Law of Property Act 1925 (UK), s 40 Limitation Act 1939 (UK), s 19 Limitation Act 1969 (NSW), ss 11(1), 14, 15, 27, 47, 48 Partnership Act 1892 (NSW), ss 19, 20, 22, 24, 28, 29, 32, 35, 39 Uniform Civil Procedure Rules 2005 (NSW), rr 17.4, 17.5 Statute of Frauds (29 Car 2, c 3, 1677), s 4 Trustee Act 1925 (NSW), s s69 Cases Cited: Australian Financial Services and Leasing Pty Ltd v Hills Industries Ltd (2014) 253 CLR 560 Brown v Robertson (1890) 16 VLR 786 Browne v Dunn (1893) 6 R 67 Ciaglia v Ciaglia [2010] NSWSC 341 Cody v Roth (1909) 28 NZLR 565 CSR Ltd v Amaca Pty Ltd [2016] VSCA 320 Dale v Hamilton (1846) 5 Hare 369; 16 LJ Ch 126 Fitzgerald v Masters (1956) 95 CLR 420 Ford v Comber (1890) 16 VLR 540 Gerace v Auzhair Supplies Pty Ltd (2014) 87 NSWLR 435; [2014] NSWCA 181 Irmie v Nisbet (1908) 27 NZLR 783 Last v Rosenfeld [1972] 2 NSWLR 923 Lees v Fleming [1980] Qd R 162 Lincoln v Wright (1859) 4 De G & J 16; 45 ER 6 Moore v Flavelle [1969] 1 NSWR 361 Orr v Ford (1989) 167 CLR 316 Pallant v Morgan [1953] Ch 43 Ramsden v Dyson (1866) LR 1 HL 129 Rochefoucauld v Boustead [1897] 1 Ch 196 Sze Tu v Lowe (2014) 89 NSWLR 317; [2014] NSWCA 462 Tito v Waddell (No 2) [1977] Ch 106 Texts Cited: Fletcher, The Law of Partnership in Australia (9th Ed, 2007) J D Heydon, LexisNexis, Cross on Evidence, vol 1 (at Service 202) Lindley & Banks on Partnership (20th Ed, 2017) Meagher Gummow & Lehane's Equity: Doctrines & Remedies (5th Ed, 2014) Category: Principal judgment Parties: Comlin Holdings Pty Ltd (Plaintiff) Metlej Developments Pty Ltd (First Defendant) Nova Scotia Developments Pty Ltd (Second Defendant) Kayrouz Constructions Pty Ltd (Third Defendant) LADS Developments Pty Ltd (Fourth Defendant) Representation: Counsel: BA Coles QC/CP O'Neill (Plaintiff) CRC Newlinds SC/L Gor/ P Abdiel (First and Second Defendants) A d'Arville/ME Hall (Third and Fourth Defendants)