Fairfield Pastoral Holdings Pty Ltd v Ridge Estate Pty Ltd (No 4) [2022] FCA 1

Fairfield Pastoral Holdings Pty Ltd v Ridge Estate Pty Ltd (No 4) [2022] FCA 1

The consultant did not engage in misleading or deceptive conduct within the meaning of s 18 of the Australian Consumer Law, as the applicants failed to prove that Steven Van Niekerk and Ridge Estate never intended to perform, or only purported to perform, their consulting role; further, the Deed removing the trustee was a conveyance made with intent to defraud creditors and therefore void under s 86 of the Law of Property Act 1936 (SA), entitling the removed trustee to indemnity from trust assets, and the agent (Steven Van Niekerk) is liable for secret commissions received during project management, recoverable by way of assignment; other monetary or restitution claims fail for want of...

Parties
First Applicant: Fairfield Pastoral Holdings Pty Ltd; Second Applicant: Fairfield Pastoral Holdings No 1 Pty Ltd; First Respondent/first Cross Claimant: Ridge Estate Pty Ltd; Second Respondent/second Cross Claimant: Steven Philip Van Niekerk; Third Respondent: Philip Frederick Van Niekerk; Fourth Respondent: Brenda Lynn Van Niekerk; Second Cross Respondent: Andrew Hamilton
Jurisdiction
Australia
Judgment Date
04 January 2022
Procedural Posture
Commercial and Corporations / First Instance Judgment After Trial
Outcome
Applicants' core claims for misleading/deceptive conduct and repayment of consultancy fees are dismissed; declaration made that Removal Deed is void as fraudulent conveyance; secret commissions claim against Steven Van Niekerk succeeds; trustee indemnity claim partially succeeds; other claims, including for...
Legal Topics
Misleading and Deceptive Conduct, Trustee's Right of Indemnity, Fraudulent Conveyance, Secret Commissions, Conversion and Detinue, Loan Disputes, Sham Arrangements
Consumer Law Equity and Trusts Property Law Corporations Agency Torts Insurance Contract +7 more

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Parties

Fairfield Pastoral Holdings Pty Ltd

First Applicant

Fairfield Pastoral Holdings No 1 Pty Ltd

Second Applicant

Ridge Estate Pty Ltd

First Respondent/first Cross Claimant

Steven Philip Van Niekerk

Second Respondent/second Cross Claimant

Philip Frederick Van Niekerk

Third Respondent

Brenda Lynn Van Niekerk

Fourth Respondent

Andrew Hamilton

Second Cross Respondent

Procedural Posture

Commercial and Corporations / First Instance Judgment After Trial

Legal Issues

  1. 1 Whether the consultant (Steven Van Niekerk/Ridge Estate) engaged in misleading or deceptive conduct under s 18 of the Australian Consumer Law
  2. 2 Entitlement to recovery of consultancy payments and related expenses
  3. 3 Whether the Deed removing the trustee was a fraudulent conveyance under s 86 of the Law of Property Act 1936 (SA)

Ratio Decidendi

The consultant did not engage in misleading or deceptive conduct within the meaning of s 18 of the Australian Consumer Law, as the applicants failed to prove that Steven Van Niekerk and Ridge Estate never intended to perform, or only purported to perform, their consulting role; further, the Deed removing the trustee was a conveyance made with intent to defraud creditors and therefore void under s 86 of the Law of Property Act 1936 (SA), entitling the removed trustee to indemnity from trust assets, and the agent (Steven Van Niekerk) is liable for secret commissions received during project management, recoverable by way of assignment; other monetary or restitution claims fail for want of...

Court Disposition

Applicants' core claims for misleading/deceptive conduct and repayment of consultancy fees are dismissed; declaration made that Removal Deed is void as fraudulent conveyance; secret commissions claim against Steven Van Niekerk succeeds; trustee indemnity claim partially succeeds; other claims, including for...

Orders

  • Removal Deed (trustee deed) declared to be a conveyance made with intent to defraud creditors and is void.
  • All property conveyances by Removal Deed are void.