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[2014] VSC 285
Supreme Court of Victoria
2014-06-18
Croucher J
Original judgment source is linked above.
a) declaring that the applicant has an interest in the proceeds of sale of the Rose Street units in the amount of $150,000;
b) granting the application for exclusion of that interest from the operation of the restraining order; and
c) directing the ACO to pay the applicant $150,000 from the net proceeds of sale of the Rose Street units.
91 As there was no term in any of the agreements providing for the payment of interest and no claim for interest on this application, I shall make no award for interest.
92 I would make no order in relation to the application under s 26.
[1] To avoid confusion, on occasions, I shall refer to Samira Taleb, Ahmed Taleb and Mohamed Taleb by their first names. Otherwise, I shall refer to Samira Taleb as the applicant.
[2] The parol evidence rule is regarded as a rule of substantive law, and not a rule of evidence; and it is not affected by the enactment of the Evidence Act 1995 (Cth): Owens v Lofthouse [2007] FCA 1968 at [62] per Weinberg J. The same must be true in Victoria despite the passage of the Evidence Act 2008 (Vic).
[3] See also, e.g., Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; (2001) 117 FCR 424 at 505[277]-507[281] per Allsop J (with whom Drummond and Mansfield JJ agreed); and Masterton Homes Pty Ltd v Palm Assets Pty Ltd [2009] NSWCA 234; (2009) 261 ALR 382 at 401-403[90] per Campbell JA (with whom Allsop P and Basten JA agreed).
[4] See Sivritas v Sivritas [2008] VSC 580; (2008) 23 VR 349 at 375[134] per Kyrou J and the cases his Honour cited.
[5] Dykstra v Dykstra (1991) 22 NSWLR 556 at 559C per McLelland J. Nor, for that matter, would a Quistclose trust of itself create an equitable interest in land: Smith v The State of Western Australia [2009] WASC 189 at [81] per McKechnie J.
[6] Indeed, it is notable that the definition of "interest" in s 3 of the Victorian Act is much broader than the equivalent provision considered by McKechnie J in Smith v The State of Western Australia [2009] WASC 187 at [4], a case on which Ms Sofroniou relied at the hearing.
Taleb
DPP [2014] VSC 285
38 Whilst there was no objection to my receiving the affidavits and no request that the deponents be called for cross-examination, later in the hearing and in a note provided subsequently, Ms Sofroniou submitted that the parol evidence rule precluded the Court from "construing the terms of the agreement by reference to the intentions set out in the affidavit evidence".[2] She submitted that "[e]vidence of the actual, subjective intentions of the parties is not admissible to construe a written contract". In support of that submission, she referred to Life Insurance Co of Australia v Phillips [1925] HCA 18; (1925) 36 CLR 60 at 71, where Knox CJ said this:
39 Ms Sofroniou also referred to Byrnes v Kendle [2011] HCA 26; (2011) 243 CLR 253 at 285[99]-[100], where Heydon and Crennan JJ said this:
The next submission of the plaintiff was that the 1981 contract was partly oral and partly written. The plaintiff submitted that it is always open to a party to show that a written document is not the binding record of their contract: Gordon v Macgregor [1909] HCA 26; (1909) 8 CLR 316 at 323; Hoyt's Pty Ltd v Spencer [1919] HCA 64; (1919) 27 CLR 133 at 143-144; J Evans & Son (Portsmouth) Ltd v Andrea Merzario Ltd [1976] 1 WLR 1078; [1976] 2 All ER 930. It is then said that the statements by Mr Giles about condition 6 were part of the
58 Mr Buckland submitted that, by application of the principles discussed by the House of Lords in Barclays Bank Ltd v Quistclose Investments Ltd [1970] AC 567 ("Quistclose"), Melville, as legal owner of the proceeds of sale of the units, held those proceeds, to the extent of $150,000, on trust for the applicant, such that she has an equitable interest in the restrained property.
61 Ms Sofroniou submitted that, while the principles in Quistclose allow that rights in debt and in equity may co-exist, this was no more than an arrangement of debtor and creditor, and no Quistclose trust was created. There were at least two reasons. First, the purpose for which the funds were advanced - the completion of the Rose Street development - did not fail. Rather, the funds were applied for that purpose. Second, there is no evidence that the funds advanced were to be held separately from Melville's other monies until the purposes of the loans were achieved, or that they would be returnable if they were not so applied. Ms Sofroniou relied on a passage in the judgment of Dixon J in Cohen v Cohen [1929] HCA 15; (1929) 42 CLR 91 at 101, where his Honour in turn accepted as correct the following passage from Channell J's judgment in Henry v Hammond [1913] 2 KB 515 at 512:
67 In Muschinski v Dodds [1985] HCA 78; (1985) 160 CLR 583 at 615-616, Deane J sounded this caution to courts considering the possibility of finding constructive trusts:
77 In DPP v Twenty Fourth Tregganu Pty Ltd [2011] VSCA 92; (2011) 31 VR 439 at 447[33]-[34], Hargrave AJA (with whom Mandie JA agreed and Nettle JA agreed in part) said this about the definition of "interest" in s 3:
(1925) 36 CLR 60
(2011) 243 CLR 253
(1986) 7 NSWLR 171
(1909) 8 CLR 316
(1919) 27 CLR 133
(1985) 2 NSWLR 309
(1929) 42 CLR 91
(1985) 160 CLR 583
(2011) 31 VR 439
(2001) 117 FCR 424
(2009) 261 ALR 382
(2008) 23 VR 349
(1991) 22 NSWLR 556