Purdon v Purdon & Anor [2007] NSWSC 141

Purdon v Purdon & Anor [2007] NSWSC 141

JP failed on the claim to recover $213,303.10 at law as assignee because it was not established that notice of assignment under s 12 of the Conveyancing Act 1919 was given before the proceedings commenced. JP and SP were joint venturers with fiduciary duties until about 8 August 2000, but the terms of the Citibank guarantee and indemnity permitted Citibank to release one guarantor and assign its rights, so JP did not breach fiduciary or equitable duties by settling with Citibank and taking the assignment; nor could SP rely on unjust enrichment to defeat rights arising from those terms. SP was liable to contribute $37,500, being half of JP's payment to Citibank, and $1,951.57 in respect of...

Jurisdiction
Australia
Judgment Date
28 February 2007
Procedural Posture
Equity Division Civil Proceedings Concerning Assignment of Debt Under a Guarantee, Contribution, Fiduciary Duties, Unjust Enrichment and a Conveyancing Act Claim Over Transferred Property / Judgment After Hearing, With Matter Stood Over to Settle Interest, Costs and Short Minutes of Order
Outcome
JP's assigned-debt claim for $213,303.10 failed; JP succeeded on contribution and on the s 37A Conveyancing Act claim; matter stood over for interest, costs and settlement of orders.
Legal Topics
['assignment of Legal Chose in Action' 'notice Under S 12 Conveyancing Act 1919' 'co Guarantor Contribution' 'joint Venture and Fiduciary Duties' 'unjust Enrichment' 'transfer With Intent to Defraud Creditors Under S 37 a of the Conveyancing Act 1919']
['equity' 'civil Procedure' 'property Law' 'commercial Law' 'guarantees and Indemnities'] ['assignment of Legal Chose in Action' 'notice Under S 12 Conveyancing Act 1919' 'co Guarantor Contribution' 'joint Venture and Fiduciary Duties' 'unjust Enrichment' 'transfer With Intent to Defraud Creditors Under S 37 a of the Conveyancing Act 1919']

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Procedural Posture

Equity Division Civil Proceedings Concerning Assignment of Debt Under a Guarantee, Contribution, Fiduciary Duties, Unjust Enrichment and a Conveyancing Act Claim Over Transferred Property / Judgment After Hearing, With Matter Stood Over to Settle Interest, Costs and Short Minutes of Order

Legal Issues

  1. 1 ["Whether JP could sue SP at law in his own name on Citibank's assigned debt without proving notice under s 12 of the Conveyancing Act 1919 before commencement of proceedings." 'Whether JP and SP were joint venturers and whether fiduciary duties prevented JP from taking or relying on the assignment from Citibank.' 'Whether contribution principles or unjust enrichment limited JP to recovering one half of the amount he actually paid to Citibank.' 'Whether SP was liable to contribute to payments made in respect of the Coca Cola guarantee.' 'Whether SP transferred 39A Raimonde Road, Eastwood to David Webb with intent to defraud creditors within s 37A of the Conveyancing Act 1919.']

Ratio Decidendi

JP failed on the claim to recover $213,303.10 at law as assignee because it was not established that notice of assignment under s 12 of the Conveyancing Act 1919 was given before the proceedings commenced. JP and SP were joint venturers with fiduciary duties until about 8 August 2000, but the terms of the Citibank guarantee and indemnity permitted Citibank to release one guarantor and assign its rights, so JP did not breach fiduciary or equitable duties by settling with Citibank and taking the assignment; nor could SP rely on unjust enrichment to defeat rights arising from those terms. SP was liable to contribute $37,500, being half of JP's payment to Citibank, and $1,951.57 in respect of...

Court Disposition

JP's assigned-debt claim for $213,303.10 failed; JP succeeded on contribution and on the s 37A Conveyancing Act claim; matter stood over for interest, costs and settlement of orders.

Orders

  • ["Judgment for SP on JP's claim for $213,303.10 based on the assignment of the debt of $426,606.20 from Citibank to JP." 'Declare that SP is liable to pay $39,451.57 to JP by way of contribution, being $37,500 and $1,951.57, together with interest to be settled.' 'Declare that the transfer of 39A Raimonde Road,...