Blashki v Utara [2002] NSWSC 1201

Blashki v Utara [2002] NSWSC 1201

The contemporaneous solicitors' notes, especially the Daniele diary note, showed that the parties had an enforceable oral contract for the plaintiff to advance moneys for the defendant's acquisition of a property, with repayment on the earliest of sale, expiry of three months' notice, or 31 December 2000, and with the plaintiff entitled on repayment to 50 per cent of the profit. The agreement did not include a contractual term remunerating the plaintiff for renovation work, and the plaintiff's proper recompense for contributions was his contractual share of profit. Because the parties' rights were governed by that contract, and because there was no promise that part of the land would be...

Jurisdiction
Australia
Judgment Date
13 December 2002
Procedural Posture
Equity Division Civil Proceeding Concerning an Oral Property Transaction, Alleged Trusts or Equitable Charge, and an Alleged Guarantee / Final Judgment After Trial, With Short Minutes to Be Brought in for Orders and Any Costs Argument
Outcome
Judgment for the plaintiff for the outstanding balance of the loan and for the defendant on the plaintiff's guarantee claim; no express, resulting or constructive trust and no charge in the plaintiff's favour in respect of the property.
Legal Topics
['offer and Acceptance' 'contract Implied From Conduct' 'oral Contract for Loan Connected With Property Acquisition' 'express Trust' 'resulting Trust' 'constructive Trust' 'equitable Charge' 'morris V Morris Charge' 'guarantee Void for Uncertainty' 'defined Principal Obligation']
['contracts' 'equity' 'guarantee and Indemnity' 'property'] ['offer and Acceptance' 'contract Implied From Conduct' 'oral Contract for Loan Connected With Property Acquisition' 'express Trust' 'resulting Trust' 'constructive Trust' 'equitable Charge' 'morris V Morris Charge' 'guarantee Void for Uncertainty' 'defined Principal Obligation']

Case Brief

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Procedural Posture

Equity Division Civil Proceeding Concerning an Oral Property Transaction, Alleged Trusts or Equitable Charge, and an Alleged Guarantee / Final Judgment After Trial, With Short Minutes to Be Brought in for Orders and Any Costs Argument

Legal Issues

  1. 1 ["Whether the parties' dealings concerning 19 Courland Street, Five Dock were governed by an enforceable oral contract and, if so, what its terms were." "Whether the plaintiff's contributions to the purchase and renovation of the property gave rise to an express, resulting or constructive trust, or an equitable charge in his favour." 'Whether the defendant repaid the alleged excess advance of about $9,900 in cash in July 1996.' "Whether the defendant gave an enforceable guarantee in respect of moneys provided by the plaintiff to the defendant's brothers for a Bali business transaction."]

Ratio Decidendi

The contemporaneous solicitors' notes, especially the Daniele diary note, showed that the parties had an enforceable oral contract for the plaintiff to advance moneys for the defendant's acquisition of a property, with repayment on the earliest of sale, expiry of three months' notice, or 31 December 2000, and with the plaintiff entitled on repayment to 50 per cent of the profit. The agreement did not include a contractual term remunerating the plaintiff for renovation work, and the plaintiff's proper recompense for contributions was his contractual share of profit. Because the parties' rights were governed by that contract, and because there was no promise that part of the land would be...

Court Disposition

Judgment for the plaintiff for the outstanding balance of the loan and for the defendant on the plaintiff's guarantee claim; no express, resulting or constructive trust and no charge in the plaintiff's favour in respect of the property.

Orders

  • ["The relevant terms of the contract were declared in substance: the plaintiff was to advance moneys to be used by the defendant in acquiring a property; the loan was to terminate on the earliest of sale, expiry of three months' notice by the plaintiff, or 31 December 2000; and upon termination the amount lent was...