Brown v Tavern Operator Pty Ltd [2018] NSWSC 1290

Supreme Court New South Wales

Medium Neutral Citation: Brown v Tavern Operator Pty Ltd [2018] NSWSC 1290 Hearing dates: 14-18, 21, 22 May 2018 Date of orders: 22 August 2018 Decision date: 22 August 2018 Jurisdiction: Equity Before: Ward CJ in Eq Decision: 1. Dismiss the plaintiff's amended summons and points of claim with costs. 2. For the avoidance of doubt, declare that the document purportedly executed by the parties as a deed on 21 September 2012 is not binding and enforceable. 3. Order the plaintiff to deliver up to the defendants' solicitors within 14 days any originals of the documents signed by the defendants on 21 September 2012 that remain in the plaintiff's possession custody or control. 4. Declare that, as between the plaintiff and the defendants, the defendants are entitled to the moneys held in a trust account in the name of the defendants' solicitors and representing 50% of the net settlement proceeds from the sale of the property known as 170 Menangle Road, Menangle Park, in the State of New South Wales, and any remaining funds out of the net settlement proceeds from the sale of the defendants' business. Catchwords: EQUITY – Equitable interests in property – Claim by plaintiff to a one-half beneficial interest in real property and other assets pursuant to a document purportedly executed as a deed – Finding that defendants' execution of the purported deed was not witnessed by the person who later signed the document as a witness – Held the document was not validly executed as a deed

CONTRACTS – Formation – Whether the purported deed was enforceable as a contract entered into between the plaintiff and the defendants for good consideration – Held that the only consideration for the agreement recorded in the purported deed was past consideration and that the defendants' subsequent conduct did not otherwise amount to acceptance of the purported deed – Held there was no implicit acceptance by the taking of a benefit under the purported deed