MITZEV v FOXMAN [2007] NSWCA 273

MITZEV v FOXMAN [2007] NSWCA 273

The appeal was allowed because the Respondent bore the burden of proving that the Credex dollars specified by the vendor, tendered by the Appellant, and accepted at settlement were valueless in May 2002. Deregistration of Exchange Ltd was not sufficient evidence that the Credex trading program had ceased to operate...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
05 October 2007
Procedural Posture
Appeal From Supreme Court of New South Wales Equity Division Proceedings Concerning a Claimed Vendor's Lien Over Real Property / Court of Appeal Judgment
Outcome
Appeal allowed; orders 1, 4 and 5 made in the Equity Division on 14 December 2006 set aside; repayment of sale proceeds with interest ordered; Respondent ordered to pay costs; Respondent granted a Suitors' Fund Act certificate.
Legal Topics
["vendor's Lien" 'credex Dollars as Consideration' 'deregistered Corporation Restored to Register' 'indefeasibility of Title' 'personal Equities' 'burden of Proof']
['conveyancing' 'corporations' 'real Property' 'equity'] ["vendor's Lien" 'credex Dollars as Consideration' 'deregistered Corporation Restored to Register' 'indefeasibility of Title' 'personal Equities' 'burden of Proof']

Source-derived case record

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Procedural Posture

Appeal From Supreme Court of New South Wales Equity Division Proceedings Concerning a Claimed Vendor's Lien Over Real Property / Court of Appeal Judgment

Legal Issues

  1. 1 ['Whether the Respondent established that the Credex dollars accepted on settlement were valueless at the time of the sale.' 'Whether deregistration of Credex National Australian Trade Exchange Limited meant there was no operating Credex trading program in May 2002.' 'What effect restoration of a deregistered corporation to the register has under s 601AH of the Corporations Act 2001 (Cth).' "Whether the Respondent was entitled to a vendor's lien or charge over registered land after completion of the contract and registration of the purchaser's title."]

Ratio Decidendi

The appeal was allowed because the Respondent bore the burden of proving that the Credex dollars specified by the vendor, tendered by the Appellant, and accepted at settlement were valueless in May 2002. Deregistration of Exchange Ltd was not sufficient evidence that the Credex trading program had ceased to operate or that the Credex dollars had no value, particularly where Management appeared to continue operating and the vendor had invoked the Credex scheme. The evidentiary foundation for the vendor's lien and damages orders therefore failed.

Court Disposition

Appeal allowed; orders 1, 4 and 5 made in the Equity Division on 14 December 2006 set aside; repayment of sale proceeds with interest ordered; Respondent ordered to pay costs; Respondent granted a Suitors' Fund Act certificate.

Orders

  • ['Allow the appeal and set aside orders 1, 4 and 5, made in the Equity Division on 14 December 2006.' 'Order that the Respondent pay to the Appellant the sum of $50,405.18, or such other amount as was received by the Respondent from the trustee for sale, upon sale of the property, together with interest thereon from...