Evidence

Horn v GA & RG Horn Pty Ltd [2022] NSWSC 1519

ESTOPPEL — Estoppel by encouragement — estoppel by acquiescence — Farming properties held through a company — Company incorporated and initial management shares held by plaintiff’s father and paternal grandfather – Plaintiff claims his father gave encouragement for plaintiff and his wife to move onto one of the properties and subsequently also farm the other property and made promises to leave the shares in the company (or the properties) to the plaintiff upon his father’s death — Father makes various Wills leaving shares to plaintiff but 5 days prior to his death makes a Will leaving his estate to his wife (plaintiff’s mother) — Plaintiff claims father estopped from doing so and shares held on trust for plaintiff — Mother claims plaintiff did not abide by terms of promises by failing to make payments to father and failing to continue farms as “working farms” — Estoppel case made out.

ESTOPPEL — Consideration of alleged conditionality of promises — Whether promises of testamentary inheritance of shares conditional upon plaintiff(s) making payments for benefit of the deceased albeit payments made to corporate entity — Whether promises conditional upon plaintiff(s) continuing to work farms for the remainder of deceased’s life — Effect of deceased’s post promise intervention suggesting alternative use of property for members of plaintiffs’ family.

ESTOPPEL — Estoppel by encouragement — estoppel by acquiescence — Requirements — deceased aware of intended reliance — Life-changing decisions with practically irreversible consequences of a profoundly personal nature beyond the measure of money — Application of principle in Donis v Donis (2017) 19 VR 577; [2007] VSCA 89 — Substantial detrimental reliance established.

TRUSTS — Time from which a constructive trust arises — Time of the conduct which gives rise to the trust occurred is generally when a plaintiff acts in reliance on the promise or expectation such that it later becomes unconscionable for the promisor to resile.

EQUITY — Equitable remedies — Defences to specific performance — Unclean hands — consideration of onus of proof — Consideration of operation of maxim used as a defence against a party seeking equitable relief based on estoppel.

PAYMENT — Consideration of payment obligation being waived or not pressed

LOANS — Onus of proof — Absence of evidence bearing directly on gifting of monies — Whether loan can be inferred from book entries without movement of money — Requirement for underlying agreement — Consideration of Manzi v Smith (1975) 132 CLR 671; [1975] HCA 35 — Whether inference of agreement open — Whether within the scope of authority of accountant to characterise payment as a loan and prepare company financial statements and tax returns accordingly.

GIFTS — Absence of evidence bearing directly on gifting of monies — Assessment of evidence — Gift established — In any event arguably a presumption of advancement arises.

PRACTICE — Pleadings — Pleading of estoppel claims — Test of pleading is not greatest fidelity to facts but materiality of facts — Pleading events or contingencies need not be stated if they are not alleged to affect a plaintiff’s right or title or claim to relief.

CIVIL PROCEDURE — Subpoenas — Privacy and access issues — If parties have concerns regarding privacy but do not have technical capacity to address that they should actively seek the assistance of their legal representatives or other appropriate professionals who can assist them to resolve production issues in a way that fairly enables production of relevant material but otherwise preserves the integrity of matters that are properly the subject of privacy concerns.

EVIDENCE — Photographic evidence — Admissibility — No requirement to prove who took the photograph — Photograph admissible where a witness is able to state the photograph accurately depicts what is shown of the relevant scene, item or facts — Nonetheless distortion of appearance may be ground to make a photograph inadmissible or use unfair.

EVIDENCE — Self-incrimination — Informing witnesses of rights — Obligation under s 132 Evidence Act 1995 (NSW) regarding objections pursuant to s 132 Evidence Act to answering questions.

DECLARATORY RELIEF — Conditioning relief on plaintiffs not being permitted to enforce claim against the estate in respect of a “director’s loan” recorded in company accounts — Further nunc pro tunc declaration sought — Declined on the facts.

TAXES AND DUTIES — NSW company shares — whether dutiable property — Marketable securities not dutiable property — Court otherwise will not pre-empt what duty or tax liability may flow from findings regarding loan and gift transactions.

ANCILLARY RELIEF — Order sought empowering Registrar to execute transfer documents — Court may condition orders with an “alternative execution” provision if circumstances demonstrate probable futility of signing request — Probable futility not demonstrated.

ORDERS — Application for referral of matters to Regulator — Basis on which referral is made discussed — Whether appropriate in the circumstances — Papers not referred.

Dr Christos Mantziaris successfully represented the Plaintiffs.

Reasons for the decision can be found here.

Nowra Radiology Pty Ltd v Macintosh (No 2) [2020] FCA 1743

EVIDENCE – whether evidence of Calderbank offer inadmissible under s 53B of the Federal Court of Australia Act 1976 (Cth) – whether offer made by email to the mediator constitutes evidence of anything “said … at a conference conducted by a mediator” – offer held inadmissible.

COSTS – where respondent acceded to part of the relief sought without admission of liability and the balance of the relief was subsequently dismissed by consent save as to costs – whether (different) Calderbank offer can be a foundation for indemnity costs when proceeding terminated without a determination on the merits – whether accession to part of the relief amounted to capitulation – whether it can be said that either side would inevitably have succeeded – whether subsequent dismissal of the proceeding by consent should be treated the same as discontinuance with regard to costs – where both parties have incurred substantial sums in costs – no discernible reason why one party or the other should pay costs – each party to bear its own costs.

Jennifer Mee represented the respondent.

Reasons for the decision can be found here.

Gooley v NSW Rural Assistance Authority (No 3) [2019] NSWSC 1314

EVIDENCE — records of prior communications concerning FOS complaint – admissibility – hearsay – prior consistent statement.

EVIDENCE — Opinion evidence — Expert opinion – economist’s opinion about conduct of bank towards customers – admissibility – Makita principles.

CONTRACTS – Performance – Variation of Terms – variation of loan repayment terms – need for consideration – assumption of risk that variation may benefit either party.

CONTRACTS — Misleading conduct under statute — variation of loan terms purportedly without customer’s knowledge and approval – misleading or deceptive conduct - unconscionable conduct - estoppel.

BANKING AND FINANCE — Banks – Statutory unconscionability – two year commercial loan – “asset lending” – breach of term of contract incorporating Banking Code of Practice.

BANKING AND FINANCE — Banks – breach of term of contract incorporating Banking Code of Practice cll 25.2 and 2.2 – requirement under term for co-operation between the customer and Bank – no breach by fixing final date for repayment after period of forbearance.

BANKING AND FINANCE — Banks — Bank accounts — Interest – entitlement to charge interest at contractual rates following expiry of loan – entitlement to interest on amounts paid and set aside for costs – repudiation – termination.

Tim Castle represented the Defendant.

Reasons for the judgement can be found here.

Gooley v NSW Rural Assistance Authority [2018] NSWSC 593

EVIDENCE – opinion evidence – exceptions – expert opinion – advance rulings – whether expert opinion admissible – whether parts of lay evidence admissible.

PRACTICE AND PROCEDURE – pleadings – whether case propounded in affidavits beyond pleadings – whether pleadings embarrassing.

Tim Castle represented the Defendant.

Reasons for the judgement can be found here.

Port Kembla Coal Terminal Ltd v Construction, Forestry, Mining and Energy Union [2016] FCAFC 99

INDUSTRIAL LAW – Redundancy – Agreement clause requiring recourse to “redeployment and voluntary redundancy” – Whether employer obliged to offer redundancy separation to employees whose positions continued to exist – Agreement clause requiring investigation of “all avenues to avoid forced redundancies, including the reduction of contractors” – Whether confined to contractors engaged on fulltime, permanent, basis – Whether employer had undertaken investigation.

INDUSTRIAL LAW – Obligation to consult where introduction of “change” being considered – Whether change was “major” – Whether introduction of change being “considered” – Potential impact of change on dayworkers – Whether employed on day shift – Whether “a change to the numbers of employees per shift.”

INDUSTRIAL LAW – Adverse action – Dismissed of employee – Whether done because of employee’s position as officer of trade union or his having engaged in industrial activity – Reasons of decisionmaker – Onus of proof – Credibility of witness.

EVIDENCE – Credibility of witnesses – Witnesses’ evidence rejected for reasons which included their failure to refer, in their affidavits, to documents and facts which were unhelpful to their case – Whether they testified that their affidavits were comprehensive – Whether they were given sufficient warning that their omissions might result in the rejection of their evidence.

INDUSTRIAL LAW – Remedies – Reinstatement – Whether available where position previously occupied no longer existed.

Lisa Doust appeared for the Construction, Forestry, Mining and Energy Union