Bale v Kimberley Developments Pty Ltd [2022] NSWSC 820

Bale v Kimberley Developments Pty Ltd [2022] NSWSC 820

The transfer of the Forest Lodge Property by the late Michel Schein to Kimberley Developments Pty Ltd is set aside because it was procured by unconscionable conduct in equity: the deceased, being elderly and vulnerable, signed the transfer after being persuaded or induced by arrangements proposed by Mr Darwiche (First Defendant’s principal), with no independent legal advice. No adequate monetary consideration was paid; rather the inducement was the prospect of a development arrangement in which the deceased would purportedly share, but this benefit was never realised. Kimberley Developments holds the property on constructive trust for the estate of the deceased, having obtained it by...

Parties
Plaintiff: Françoise Bale; First Defendant: Kimberley Developments Pty Ltd; Second Defendant: Albert Darwiche; Third Defendant: Martin Churchill; Fourth Defendant: Chyna Schein (nee Richardson); Fifth Defendant: Theofanis Trigas; Sixth Defendant: Super Start Batteries Pty Ltd
Jurisdiction
Australia
Judgment Date
23 June 2022
Procedural Posture
Principal Judgment (civil, Equity Division) / Final Judgment After Trial
Outcome
Plaintiff's primary claim for equitable relief (setting aside transfer for unconscionable conduct and breach of trust) upheld; defendants' defences, including statute, laches, and acquiescence, rejected; claims for breach of contract and Contracts Review Act dismissed.
Legal Topics
Constructive Trusts, Unconscionable Conduct, Fiduciary Duties, Breach of Trust, Formation of Contracts, Intention to Create Legal Relations, Unjust Contracts, Limitation of Actions
Equity Contract Law Trusts Law Constructive Trusts Unconscionable Conduct Fiduciary Duties Breach of Trust Formation of Contracts +3 more

Case Brief

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Parties

Françoise Bale

Plaintiff

Kimberley Developments Pty Ltd

First Defendant

Albert Darwiche

Second Defendant

Martin Churchill

Third Defendant

Chyna Schein (nee Richardson)

Fourth Defendant

Theofanis Trigas

Fifth Defendant

Super Start Batteries Pty Ltd

Sixth Defendant

Procedural Posture

Principal Judgment (civil, Equity Division) / Final Judgment After Trial

Legal Issues

  1. 1 Whether the transfer of the Forest Lodge Property to Kimberley Developments Pty Ltd should be set aside for unconscionable conduct or breach of trust
  2. 2 Whether the 21 February 2011 agreement was a binding contract
  3. 3 Whether a constructive trust arises over the property and whether it was breached

Ratio Decidendi

The transfer of the Forest Lodge Property by the late Michel Schein to Kimberley Developments Pty Ltd is set aside because it was procured by unconscionable conduct in equity: the deceased, being elderly and vulnerable, signed the transfer after being persuaded or induced by arrangements proposed by Mr Darwiche (First Defendant’s principal), with no independent legal advice. No adequate monetary consideration was paid; rather the inducement was the prospect of a development arrangement in which the deceased would purportedly share, but this benefit was never realised. Kimberley Developments holds the property on constructive trust for the estate of the deceased, having obtained it by...

Court Disposition

Plaintiff's primary claim for equitable relief (setting aside transfer for unconscionable conduct and breach of trust) upheld; defendants' defences, including statute, laches, and acquiescence, rejected; claims for breach of contract and Contracts Review Act dismissed.

Orders

  • Set aside the transfer dated 21 February 2011 in relation to the Forest Lodge Property.
  • Direct Kimberley Developments within 28 days to transfer the Forest Lodge Property, unencumbered, to Ms Françoise Bale as executor of Michel Schein's estate.