Brown v Tavern Operator Pty Ltd [2018] NSWSC 1290

Brown v Tavern Operator Pty Ltd [2018] NSWSC 1290

The document purportedly executed as a deed on 21 September 2012 was not validly attested in accordance with section 38 of the Conveyancing Act 1919 (NSW); thus, it was not a valid or binding deed. The agreement recorded in that document was not supported by good or present consideration and was not enforceable as a contract. Even if either or both of those conclusions were incorrect, it would be unconscionable for the plaintiff now to seek to enforce the September Deed or the agreement recorded in it, in light of the representations made at the time of execution that the documents would serve only as security and would be kept in a drawer unless there was a default in repayment of moneys...

Parties
Plaintiff: James Ian Brown; First Defendant: Tavern Operator Pty Ltd; Second Defendant: Gregory John Nixon; Third Defendant: Bronwyn Megan Tallis
Jurisdiction
Australia
Judgment Date
22 August 2018
Procedural Posture
Equity Principal Judgment / Final Determination
Outcome
Plaintiff's claim dismissed with costs.
Legal Topics
Deeds and Attestation, Enforceability of Agreements, Misleading or Deceptive Conduct, Unconscionable Conduct, Beneficial Interests in Property, Agency Authority, Heads of Agreement, Execution Formalities Under Conveyancing Act 1919 (nsw)
Equity Contracts Property Law Corporate Law Consumer Law Deeds and Attestation Enforceability of Agreements Misleading or Deceptive Conduct +5 more

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Parties

James Ian Brown

Plaintiff

Tavern Operator Pty Ltd

First Defendant

Gregory John Nixon

Second Defendant

Bronwyn Megan Tallis

Third Defendant

Procedural Posture

Equity Principal Judgment / Final Determination

Legal Issues

  1. 1 Whether the September 21, 2012 document was validly executed as a deed and enforceable
  2. 2 Whether the purported deed is enforceable as a contract
  3. 3 Whether the plaintiff acquired an equitable interest in property and business

Ratio Decidendi

The document purportedly executed as a deed on 21 September 2012 was not validly attested in accordance with section 38 of the Conveyancing Act 1919 (NSW); thus, it was not a valid or binding deed. The agreement recorded in that document was not supported by good or present consideration and was not enforceable as a contract. Even if either or both of those conclusions were incorrect, it would be unconscionable for the plaintiff now to seek to enforce the September Deed or the agreement recorded in it, in light of the representations made at the time of execution that the documents would serve only as security and would be kept in a drawer unless there was a default in repayment of moneys...

Court Disposition

Plaintiff's claim dismissed with costs.

Orders

  • Dismiss the plaintiff's amended summons and points of claim with costs.
  • Declare that the document purportedly executed by the parties as a deed on 21 September 2012 is not binding and enforceable.