Mirzikinian v Tom & Bill Waterhouse Pty Ltd [2009] NSWCA 296

Mirzikinian v Tom & Bill Waterhouse Pty Ltd [2009] NSWCA 296

The appellant signed and handed back the Deed in circumstances showing an intention that it be executed as his deed and immediately binding on him. The acknowledgement of indebtedness and undertaking to pay $250,000 were unconditional, and neither the Deed nor the surrounding conversation created an escrow condition requiring Mr Waterhouse's execution or notification before those obligations bound the appellant. Even if the Deed had been delivered in escrow, the conditions were fulfilled and the appellant could not revoke it or treat it as expired merely by making a counter-offer or relying on lapse of time. The illegality defence failed because the Deed was silent as to the identity of...

Jurisdiction
Australia
Judgment Date
08 October 2009
Procedural Posture
Application for Leave to Appeal and Appeal / Court of Appeal From Orders of Elkaim DCJ in the District Court Granting Summary Judgment and Striking Out Parts of the Defence
Outcome
Leave to appeal granted; appeal dismissed with costs.
Legal Topics
['deeds' 'delivery of Deeds' 'escrow' 'summary Judgment' 'illegality' 'unlawful Gambling' 'security for Judgment Debt']
['contract Law' 'equity' 'gambling Law' 'civil Procedure'] ['deeds' 'delivery of Deeds' 'escrow' 'summary Judgment' 'illegality' 'unlawful Gambling' 'security for Judgment Debt']

Case Brief

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Procedural Posture

Application for Leave to Appeal and Appeal / Court of Appeal From Orders of Elkaim DCJ in the District Court Granting Summary Judgment and Striking Out Parts of the Defence

Legal Issues

  1. 1 ['Whether the appellant delivered the Deed of Acknowledgment of Debt as a deed intended to be immediately binding on him.' 'Whether the Deed was delivered in escrow pending execution or approval by Mr Waterhouse and notification to the appellant.' 'Whether the appellant could revoke the Deed by making a counter-offer before the alleged escrow conditions were fulfilled.' 'Whether the Deed expired by lapse of a reasonable time before execution by the respondent.' 'Whether the obligation under the Deed was illegal or unenforceable under the Unlawful Gambling Act 1998 because the respondent was not licensed when the betting debts were incurred.']

Ratio Decidendi

The appellant signed and handed back the Deed in circumstances showing an intention that it be executed as his deed and immediately binding on him. The acknowledgement of indebtedness and undertaking to pay $250,000 were unconditional, and neither the Deed nor the surrounding conversation created an escrow condition requiring Mr Waterhouse's execution or notification before those obligations bound the appellant. Even if the Deed had been delivered in escrow, the conditions were fulfilled and the appellant could not revoke it or treat it as expired merely by making a counter-offer or relying on lapse of time. The illegality defence failed because the Deed was silent as to the identity of...

Court Disposition

Leave to appeal granted; appeal dismissed with costs.

Orders

  • ['Leave to appeal granted.' 'Appeal dismissed with costs.' 'The $250,000 paid by the appellant into Court as security for the judgment debt be paid to the respondent, subject to this order being stayed for 14 days from the date on which this judgment is delivered.' 'Entitlement to interest on $250,000 to be decided...