French v Bremner; Bremner v French [2020] NSWCA 339

French v Bremner; Bremner v French [2020] NSWCA 339

The appeal is allowed only as to the award of interest, recognising an agreed interest rate of 5% on amounts lent by Dr Bremner, but otherwise dismissed. The factual findings of the trial judge, which rejected the existence of the three oral contracts and found the presumption of resulting trust rebutted as to properties, are not disturbed as neither party established a basis to interfere with those findings. The claim for partnership or breach of fiduciary duty cannot be considered, as it was not pleaded or was expressly abandoned at trial. Dismissal of the cross-appeal against Ms Bakey is upheld due to incompetence and lack of merit.

Parties
Appellant; First Cross Respondent: Andrew Boyd French; Respondent; Cross Appellant: Christopher Bremner; Second Cross Respondent: Gabrielle June Bakey
Jurisdiction
Australia
Judgment Date
18 December 2020
Procedural Posture
Civil Appeal and Cross Appeal / Judgment of Court of Appeal Following Trial; Resolution of Appeals and Cross Appeals
Outcome
Appeal allowed in part (only as to interest), appeal otherwise dismissed; cross-appeal dismissed; specific costs orders as detailed.
Legal Topics
Oral Contract, Joint Venture, Partnership, Breach of Contract, Resulting Trust, Repayment of Loans, Factual Findings, Interest on Judgment Debts, Costs, Procedural Decisions
Contract Equity Trusts Oral Contract Joint Venture Partnership Breach of Contract Resulting Trust +5 more

Case Brief

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Parties

Andrew Boyd French

Appellant; First Cross Respondent

Christopher Bremner

Respondent; Cross Appellant

Gabrielle June Bakey

Second Cross Respondent

Procedural Posture

Civil Appeal and Cross Appeal / Judgment of Court of Appeal Following Trial; Resolution of Appeals and Cross Appeals

Legal Issues

  1. 1 Whether oral contracts alleged by Mr French existed and were breached
  2. 2 Whether partnership or breach of fiduciary duty claims could be advanced
  3. 3 Whether properties acquired in rural Victoria were held on resulting trust for Dr Bremner

Ratio Decidendi

The appeal is allowed only as to the award of interest, recognising an agreed interest rate of 5% on amounts lent by Dr Bremner, but otherwise dismissed. The factual findings of the trial judge, which rejected the existence of the three oral contracts and found the presumption of resulting trust rebutted as to properties, are not disturbed as neither party established a basis to interfere with those findings. The claim for partnership or breach of fiduciary duty cannot be considered, as it was not pleaded or was expressly abandoned at trial. Dismissal of the cross-appeal against Ms Bakey is upheld due to incompetence and lack of merit.

Court Disposition

Appeal allowed in part (only as to interest), appeal otherwise dismissed; cross-appeal dismissed; specific costs orders as detailed.

Orders

  • Grant leave to Mr French to amend his notice of appeal to challenge the award of interest.
  • Dispense with the filing of an amended notice of appeal.