Ellimark Pty Ltd v Calvo [2015] NSWSC 1240

Ellimark Pty Ltd v Calvo [2015] NSWSC 1240

The Ellimark Deed was not liable to be set aside under the Contracts Review Act 1980 or on the grounds of unconscionable conduct; Ellimark’s rights under the Deed had not lapsed. The plaintiff is entitled to specific performance of that Deed. The 2007 Deed, Shares Mortgage and Transfer of Shares entered into with Leigh Johnson were unjust within the meaning of the Contracts Review Act and are to be set aside; Johnson is not entitled to specific performance or transfer of the shares. The 2007 Deed was void as a non-compliant conditional costs agreement under the Legal Profession Act 2004, but not a prohibited contingency fee agreement. Estoppel from claiming costs was not established...

Jurisdiction
Australia
Judgment Date
31 August 2015
Procedural Posture
Equity Principal Judgment / Final Judgment After Trial, With Final and Cross Claims Determined
Outcome
Plaintiff entitled to specific performance of Ellimark Deed; defendants' claims against plaintiff dismissed; 2007 Deed, Shares Mortgage and Transfer of Shares set aside; Ms Johnson’s cross-claim dismissed; costs orders to be separately determined.
Legal Topics
['deeds—construction—unconscionability' 'specific Performance' 'costs Agreements—legal Profession Regulation' 'contracts Review Act—unjust Contracts' 'contingency Fees' 'estoppel']
['contracts' 'equity' 'legal Profession'] ['deeds—construction—unconscionability' 'specific Performance' 'costs Agreements—legal Profession Regulation' 'contracts Review Act—unjust Contracts' 'contingency Fees' 'estoppel']

Case Brief

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Procedural Posture

Equity Principal Judgment / Final Judgment After Trial, With Final and Cross Claims Determined

Legal Issues

  1. 1 ['Whether Ellimark Deed is liable to be set aside under the Contracts Review Act 1980 or for unconscionability; whether Ellimark’s rights under deed lapsed; whether Leigh Johnson entitled to specific performance (transfer of shares) or other relief under 2007 Deed, Shares Mortgage, or Transfer of Shares; whether 2007 Deed, Shares Mortgage and Transfer of Shares are void or unenforceable under the Legal Profession Act 2004; whether Ms Johnson is estopped from claiming costs.']

Ratio Decidendi

The Ellimark Deed was not liable to be set aside under the Contracts Review Act 1980 or on the grounds of unconscionable conduct; Ellimark’s rights under the Deed had not lapsed. The plaintiff is entitled to specific performance of that Deed. The 2007 Deed, Shares Mortgage and Transfer of Shares entered into with Leigh Johnson were unjust within the meaning of the Contracts Review Act and are to be set aside; Johnson is not entitled to specific performance or transfer of the shares. The 2007 Deed was void as a non-compliant conditional costs agreement under the Legal Profession Act 2004, but not a prohibited contingency fee agreement. Estoppel from claiming costs was not established...

Court Disposition

Plaintiff entitled to specific performance of Ellimark Deed; defendants' claims against plaintiff dismissed; 2007 Deed, Shares Mortgage and Transfer of Shares set aside; Ms Johnson’s cross-claim dismissed; costs orders to be separately determined.

Orders

  • ['Order for specific performance of Ellimark Deed: Mrs Calvo to transfer 12.5% AIM shares to Ellimark.' 'Mrs Calvo’s claims against Ellimark dismissed.' 'Order setting aside 2007 Deed, Shares Mortgage and Transfer of Shares (as between Mrs Calvo and Ms Johnson).' 'Ms Johnson’s claims for specific performance and...