Stafford & anor v Kekatos & anor - [2008] NSWSC 1093 - NSWSC 2008 case summary — Zoe

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Stafford & anor v Kekatos & anor

[2008] NSWSC 1093

Supreme Court of NSW|2008-09-16|Before: Brereton J, Mr P

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Source facts

Court

Supreme Court of NSW

Decision date

2008-09-16

Before

Brereton J, Mr P

Source

Original judgment source is linked above.

Judgment (98 paragraphs)

[1]

Background 2 Prior to 8 December 1999, Australian Machinery Equipment Sales Pty Ltd ("AMES") - a company owned by the Stafford family and the Kekatos family - was the proprietor of the Penrose Land, upon which there was a quarry. The interest of AMES in the Penrose Land was subject to several interests and claims, including a registered mortgage of the land, and a charge over the assets and undertaking of AMES, to the National Australia Bank ("NAB"); a lease to Heggies Bulkhaul Ltd ("Heggies"), under which Heggies was obliged to pay royalties to AMES; a caveat by Heggies and Collex Waste Management Pty Ltd ("Collex") claiming an interest pursuant to an unregistered mortgage under a joint venture agreement dated 5 December 1995 between AMES, Heggies and Collex in relation to the use of the Penrose Land for landfill purposes, by which AMES agreed to grant Heggies and Collex a mortgage over the land to secure the performance of its obligations under the agreement; a caveat by Collex, claiming an option to acquire a lease of the Penrose Land; and a caveat by Ostabridge Pty Ltd ("Ostabridge"), claiming an interest pursuant to a contract for sale of the land.

[2]

3 On 8 December 1999, the Staffords and Mrs Kekatos advanced to Global Minerals Australia Pty Limited ("Global") the sum of $1,200,000, which in due course Global paid at the direction of AMES to discharge the NAB mortgage, in consideration for the acquisition of the Penrose Land, the transfer of which to Global was registered on 2 May 2000. The Staffords (as to 25 shares each) and Mrs Kekatos (as to 30 shares) were the shareholders in, and directors of, Global. They borrowed the $1,200,000 from the Commonwealth Bank on the security of a charge over the assets and undertaking of AMES and mortgages by each of the Staffords (and their respective husbands) and Mrs Kekatos, over other properties separately held by them.

[15]

15 Mr Cvitanovic, at the request of Mr Kekatos and Mr Stafford, instructed an accountant, Mr Hawketts, on or about 11 December, to procure a unit trust deed. Although in due course Mr Hawketts procured a trust deed, of which Mr Cvitanovic was notified on 15 December and which was forwarded to Mr Stafford on 5 February 2004, it was never executed. This is unsurprising because, as will become apparent, the purchase of the property was not proceeding. However, on or not long after 5 December, the Fifth Schedule of a proforma unit trust deed, which named Mrs Kekatos as trustee of the Penrose Quarry Unit Trust was obtained by Mr Kekatos, executed by Mrs Kekatos, witnessed by Mr Kekatos' employee Mr Stubing, and provided to Mr Wayne Stafford - along with the remainder of the proforma trust deed, which contains a number of internal indicia suggestive that the Fifth Schedule was part of it - in particular, the circumstance that the precedent contains no provision for execution by the trustee except in the Fifth Schedule. Mr Kekatos inserted the date 2 December 2003 in the Fifth Schedule, probably some time on or soon after 5 December. Although Mr Kekatos was at a loss to explain the execution and dating of the Fifth Schedule, and sought to assert that it must relate to some other arrangement - since it did not reflect the intent of the parties that the beneficial interests be 50/50 - no other transaction to which it might relate was ever identified; its very name suggests that it was related to the subject transaction; and the discrepancy - that the schedule allocated the units 51/49 and did not refer to voting shares, whereas the common intent of the parties was that the beneficial interest would be 50/50 with the Kekatos interests to have voting control - in the scheme of things is not a significant inconsistency: there is not much difference between 51/49, and 50/50 with voting control. The probable explanation is that Fifth Schedule provided by Mr Kekatos was executed, in order to provide confirmation that Mrs Kekatos would purchase as trustee for the parties in the agreed proportions, in the light of the delay and cost that would be associated with using a trust procured by Mr Hawketts. 16 Still on 5 December, Mr Kekatos then completed and submitted to Mr Cvitanovic a form of tender for the purchase of the Penrose Land (presumably intended, although not expressly stated, to be subject to the Global Charge), by "Voula Kekatos as trustee of Penrose Trust", for a price of $1.7 million. High Quality submitted a conditional tender for $2,250,000; and Adelaide Brighton Ltd a conditional tender for $4,000,000. Mr Cvitanovic wished to accept Mrs Kekatos' tender, and recommended it to Ostabridge's receiver, Mr Shirlaw. On 22 December 2003, Mr Cvitanovic reported to his appointors that Mr Shirlaw had given conditional consent and attached correspondence which outlined the terms of the proposed sale (amended apparently following negotiations between him and Mr Shirlaw), including that the price was $1.8 million, and also a schedule "detailing the debts of the secured creditors based on moneys to be paid by Mr Kekatos following the sale of the property", as follows:

[20]

17 It seems to have been assumed, therefore, that the Global Charge would subsist and that the further funding to be provided by Mrs Kekatos - including what was required to pay out Ostabridge, and the receiver's costs - would be treated as further advances by her on the security of the Global Charge. Thus the effect of the tender if accepted would have been that Mrs Kekatos would have acquired the land as trustee for the Kekatos interest and the Stafford interest equally, but subject to the Global Charge, which would secure repayment of the existing advances by the Staffords and by Mrs Kekatos, with interest, and also the further advances to be made by Mrs Kekatos to complete the purchase. This accords with Mr Kekatos' version, which in this respect I accept, that he stipulated that the parties would share 50/50 after repayment of the proposed further advances by Mrs Kekatos of $2 million. 18 No trust was constituted at that stage, because there was no property that could be the subject of the trust: not only did Mrs Kekatos not hold the Penrose Land, but contracts for its purchase by her had not been exchanged. The Staffords contended that there was a binding and enforceable agreement, which they called the "Penrose Trust Agreement", pursuant to which Mrs Kekatos agreed to purchase the Penrose Land as trustee for herself and the Staffords. Where a person promises for valuable consideration in a concluded agreement to assign property of a certain description not then owned by the promisor, and the consideration has passed, equity fastens upon the property once acquired so as to make the promisor a trustee for the intended assignee [Palette Shoes Pty Ltd v Krohn (1937) 58 CLR 1, 26-7; Booth v Federal Commissioner of Taxation (1987) 164 CLR 159; Ford & Lee, Principles of the Law of Trusts, [3240]]. However, in this case, as at December 2003, there was no consideration moving from the Staffords to support any such agreement, let alone had any consideration passed; and although in a sense the parties had "agreed" that Mrs Kekatos would submit a tender on behalf of the proposed trust - to purchase the Penrose Land, subject to the Global Charge, at a price not exceeding $1.7 million, to be raised on the security of Mrs Kekatos' Vaucluse home and the Penrose Land - there was no "concluded agreement" in the sense of a binding and enforceable contract to that effect: not only because of the absence of consideration, but also because it is clear enough, from the circumstance that the Staffords were contemporaneously engaged in negotiations with another potential purchaser of the land - High Quality, who also lodged a tender on 5 December 2003, which contemplated the Kekatos interests being bought out - that the Staffords did not then intend to be bound with Mrs Kekatos to the terms of the alleged "Penrose Trust Agreement". Had Mrs Kekatos' tender been accepted, she would, upon acquiring an interest in the property, indeed have held it as trustee, but not pursuant to a binding and enforceable agreement - rather, because she purchased expressly as trustee.

[26]

24 In a letter of advice to Mr Cvitanovic of 6 July 2004, his solicitors Gordon & Johnstone wrote that a proposed contract for sale of the Penrose Land to the Penrose Quarry Trust for $2.1 million was fraught with danger in the circumstances, but that - noting Mr Cvitanovic's wish to proceed nonetheless - they had prepared a contract, which they were making available to Mr Kekatos, and which they had released to Mrs Kekatos on the basis that it was being forwarded to the receiver for consideration, amendment and approval. The draft contract described the purchaser as "[insert trustee name] in its capacity and as trustee for the PENROSE QUARRY TRUST". Mr Kekatos denied having ever received any such contract, but in light of Mr Cvitanovic's letter of 9 June, as well as other reasons referred to below for reservations about the reliability of Mr Kekatos' evidence, I am satisfied that he conveyed the offer which resulted in the preparation of that draft contract. 25 The undoubtedly serious impediments to such a contract being completed at that time were, however, exacerbated when, on 7 July, Mr Shirlaw entered into a contract for sale of the land to Adelaide Brighton Ltd. Mr Cvitanovic became aware of this the same day, although it is not clear when the Staffords or the Kekatos learnt of it. On or about 16 July 2004, Mr Cvitanovic sent a letter to each of the Staffords and Mrs Kekatos, conveying a settlement proposal he had received from Mr Shirlaw on behalf of Ostabridge, and advising that he would have to accept the proposal (which would leave virtually nothing for the Staffords and Mrs Kekatos), unless his outstanding fees - said to amount to $756,000 - were paid, and security provided for a further $300,000. The Staffords - who were clearly in no position to provide any further funding to Mr Cvitanovic - denied any knowledge of this letter; in the case of Mr Wayne Stafford at least, this is surprising. But whether or not he knew of the letter, I am satisfied that Mr Stafford was aware at least of the requirement to provide further funds to Mr Cvitanovic. In late July 2004, there was a meeting at the offices of Gordon & Johnstone, solicitors who were acting for Mr Cvitanovic, in the course of which Mr Kekatos proposed that Mrs Kekatos would provide the necessary funding and relieve the Staffords of their obligation to fund the receiver in return for an absolute assignment of the charge, but Mr Stafford rejected this proposal, and left the meeting. This is asserted by Mr Kekatos and confirmed by Mr Cvitanovic; and though Mr Stafford does not recall it, it is entirely consistent with his position, and I accept it. Moreover, the receiver's requirements for further funds, and the Staffords' inability to provide them, were recited in the Deed of Assignment of 29 August, to which I shall come. Indeed, the necessity for further funding, and the Staffords' inability to contribute to it, had been a basic element of all that had happened since late 2003.

[31]

30 Mr Stafford says that in August or September he had a conversation with Mr Kekatos in which the latter said that the "only way out" was if he could raise $2.5 million to pay out Mr Shirlaw, so that the trust could then acquire the Penrose Land, which he believed he could achieve using the Kekatos' Vaucluse home as security, but was only prepared to do so if compensated "for taking the risk and for funding the security to pay out Shirlaw". He proposed that the Global Charge be assigned to the trust, so that in the end the property and the charge would each be held as to 50% for the Staffords and 50% for Mrs Kekatos, which would be "compensation for the money that we are putting in to fund the legals and also for raising the security to pay out Shirlaw". Mr Stafford says that negotiations began with Mr Kekatos seeking a 75% interest in the trust, and that after days of negotiations they agreed on 50%. It is noteworthy that, having regard to the calculations referred to above (at [16]), increasing the Kekatos' interest in the charge to 50% (from 32.25%) would not by any means compensate them for the further expenditure it was anticipated that they would incur - unless that further expenditure were to be recoverable by them in addition to the amounts already secured by the Charge. 31 Mr Cvitanovic says that in August or early September, Mr Kekatos told him that if he was going to fund the litigation he wanted a bigger share of the proceeds, and subsequently that the Staffords would assign their interest under the charge to Mrs Kekatos as trustee, so that each would get 50%, with the Kekatos' interests to have control. Mr Kekatos denies any such conversation - with either Mr Stafford or Mr Cvitanovic - in or about August or September 2004, saying that the only occasion on which anything like that was discussed was in December 2003. Indeed, at one point he suggested that the relationship between him and Mr Stafford had broken down to the extent that they were not then speaking. However, on 8 September, Mr Stafford sent an email to Mr Cvitanovic: Have finally agreed on terms of the deed with George!, I am in Melbourne until Friday AM, Sue and Rhonda will sign the documents that will release your funds and complete the sale. When payment of the royalty is released I would expect you will release the moneys owed to Garry and the $35,000 Williams took from myself. When this is completed George and I would like to have a meeting arranged with HBL and Boral to discuss the transfer and conditions that we want. I suggest this could be later next week. 32 This contemporaneous communication corroborates Mr Stafford's evidence that he had conversations with Mr Kekatos about the terms of the assignment, and refutes Mr Kekatos' evidence that they were not then on speaking terms.

[42]

48 There are multiple reasons for doubting the accuracy and reliability of the evidence of Mr Kekatos. First, in his affidavit he said that on 8 June 2004 he had not heard of the "Penrose Quarry Trust Syndicate", and that the only trust deed with which he ever had any involvement was one obtained by Mr Hawketts following the 5 December 2003 meeting, at which he asked Mr Cvitanovic to get Mr Hawketts to obtain a "shelf trust". However, the Fifth Schedule was signed by his wife and dated 2 December 2003 by himself, and the precedent trust deed provided to Mr Stafford at about that time had nothing to do with the trust deed procured by Mr Hawketts; it was obtained from Mr Kekatos' office. Secondly, in his affidavit he denied the conversation of 15 September 2004 to which Mr Cvitanovic deposed, and of which Mr Cvitanovic produced a file note; yet in his oral evidence he conceded that there may have been such a conversation, though he continued to deny that it contained any reference to taxation reasons for omitting reference to the trust; but Mr Cvitanovic was unchallenged in respect of his version. Thirdly, while he denied that the only reason for providing a copy of the Fifth Schedule to the Staffords was to convince them of the existence of the trust, he was unable to offer any alternative explanation. While he maintained that the Fifth Schedule did not reflect the parties' intention (because it represented a 51/49 apportionment, rather than 50/50, but with the Kekatos interests to have voting control), he elsewhere slipped into describing their understanding as one involving the Kekatos interests having 51%, which illustrates the absence of material difference between the two concepts from his perspective. Fourthly, when it was first suggested to him in cross-examination that it was in the Kekatos' interests to reach agreement with the Staffords - as Mrs Kekatos was the only participant remaining who had assets and stood most to lose - he denied it; but later he agreed that Mr Cvitanovic had threatened to pursue Mrs Kekatos for his remuneration as she was the only participant with available assets. The Kekatos interests had most to lose, and would benefit from the assignment, first by obtaining control, and secondly by increasing their entitlement from 32.25% to 50%. Fifthly, while he maintained in his evidence that the assignment was absolute, correspondence with the Staffords after September 2004 suggested that he recognised that they had an ongoing interest. On 2 February 2005, Mr Kekatos forwarded to Mr Stafford an email from Boral proposing changes to arrangements for royalty payments. On 20 May 2005, Mr Kekatos forwarded to Mr Stafford indicative offers from Laiki Bank for advances to Mrs Kekatos, and an "Indicative Banking Proposal" from Bankwest for Mrs Kekatos, for a facility of $5.5 million to refinance existing facilities of $2.9 million and provide $2.6 million to acquire the Penrose Quarry. Yet on his version, the Staffords no longer had any interest in these matters. He could offer no explanation for having forwarded them to Mr Stafford. 49 Mr Kekatos did not challenge nor deny, though he did not remember, conversations with Mr Garry Stafford during this period, in which the latter pressed for information about progress with the matter (in which, on Mr Kekatos' version, the Staffords had no further interest). However, he did recall at one stage some "hounding" by Mr Wayne Stafford, but was quite unable to explain why he did not suppress him with a curt reminder that the Staffords had no further interest. 50 On 5 October 2005, in response to a request made that day for information as to progress of the matter and what the Staffords could expect, he sent to Mr Stafford an email, as follows: The matter is in court on 20 October 2005. I am currently in court on an application by Adelaide Brighton to settle and pay the balance of funds into court. Shirlaw wants to take all the funds and has set up the following charges so that we get nothing. There is nothing to report until the hearings are over. I am not going to stand by and lose all the money. So I have to keep fighting.

[47]

54 I am satisfied that the Staffords first executed the Deed of Assignment in the belief that Mrs Kekatos as assignee took as a trustee. Mr Kekatos and Mr Cvitanovic both say that Mr Stafford rejected the proposition of an absolute assignment at the meeting of 16 July. Moreover, the interlineations made by him in the Deed of Assignment, and its forwarding on 14 September accompanied by the Undertaking and Fifth Schedule, together with the covering letter, point incontrovertibly to its being their intent that the assignment be to Mrs Kekatos as trustee and not absolutely. 55 It is inconceivable that the Deed would have been re-sent a second time, without the interlineations, without some intervention: someone must have told the Staffords something to cause them to re-forward it, omitting the words that had plainly been intentionally inserted by Mr Stafford for their own protection. It is quite clear that in 2004 Mr Stafford was very conscious of the importance of making it clear that Mrs Kekatos was acting as trustee; it is certain that he would not have agreed to a transfer of the charge absolutely, and therefore that he must have been satisfied, somehow, that removal of the express words of the interlineations would not affect the existence of the trust. Mr Kekatos contended that the commercial explanation of the assignment was that the Staffords obtained the benefit of exoneration from liability for the receiver's fees in return for surrendering their interest; however, the Deed of Assignment does not have the effect of exonerating or indemnifying them in that respect. Strikingly, Mr and Mrs Kekatos could point to no conversation or communication in which the Staffords, after the meeting on 16 July, were asked or agreed to forego their opposition to an absolute assignment - on their version, the interlineations were omitted without request or suggestion, let alone insistence, on their part. This is entirely implausible. 56 It is clear that the Staffords proceeded on the basis that, although everyone knew that Mrs Kekatos was acting as trustee, the Deed could not expressly say so, for taxation and other commercial reasons. In those circumstances, the evidence admits of two possible explanations. The first implicates Mr Kekatos, and is that Mr Cvitanovic upon instructions from Mr Kekatos, and perhaps Mr Kekatos himself also, told Mr Stafford that while everyone knew that Mrs Kekatos was a trustee, that should not be mentioned in the Deed. The alternative is that Mr Cvitanovic told Mr Stafford, independently of Mr Kekatos. 57 The first version is supported by the evidence of Mr Cvitanovic and his contemporaneous file note of 15 September 2004, as well as the evidence of Mr Stafford and his letter to Mr Cvitanovic of 21 September (in which he referred to the alterations having been made "at your and George's request"). Given his predicament in obtaining payment of his considerable outstanding fees, Mr Cvitanovic was not without motive to facilitate documentation that might progress the matter towards the realisation of assets. But this theory would involve the notion that he fabricated a reason for omitting the interlineations, unsolicited by Mr Kekatos, in order to procure prompt payment of his fees. Why he would see such a course as necessary in the absence of at least some indication from Mr Kekatos that the interlineations were unacceptable is not apparent. Moreover, no suggestion that he fabricated a reason for deletion of the interlineations, or that he spontaneously provided any such reason to Mr Stafford, was ever put to him. 58 Although Mr Kekatos denies ever having seen the version of the Deed with interlineations, nor ever having discussed the question with Mr Cvitanovic or Mr Stafford - save for his initial conversation about the assignment with Mr Cvitanovic - not only does he give no evidence of any further conversation with Mr Stafford after the 16 July meeting, but he denies that there was any further conversation between them in respect of the proposed assignment, asserting that by this time their relationship had broken down, that they were not speaking, and that they negotiated through Mr Cvitanovic. On the probabilities, I am unable to accept this. Mr Stafford's email of 8 September tells against it, as does his covering letter of 21 September. Further telling evidence is to be found in the events after 21 September 2004. It is striking that it is only in communications with the Staffords that, after September 2004, there is any reference, in documents generated or communicated by Mr Kekatos, inconsistent with Mrs Kekatos having acquired the charge as beneficial owner. These matters bespeak knowledge on the part of Mr Kekatos that the Staffords entertained the assumption that they retained a beneficial interest in the charge. There are too many of them, for which Mr Kekatos was unable to offer any explanation (other than that advanced by the Staffords, namely that they bespoke an acknowledgement that they continued to retain an interest in the charge, or if not were calculated to leave them in that belief), to be passed off as co-incidence. Together, they are compelling evidence of knowledge on the part of Mr Kekatos of the Staffords' belief that they had not, by the Deed of Assignment, given up all their rights in the charge, but retained a beneficial interest. 59 For all those reasons, it cannot be accepted that Mr Cvitanovic acted independently, and that Mr Kekatos was not implicated. Accordingly, I conclude that Mr Kekatos, as agent for Mrs Kekatos, personally and through Mr Cvitanovic, represented to the Staffords that Mrs Kekatos was acting as trustee and that it was only for taxation and commercial reasons that express references to the trust should be omitted; and knew and intended that the Staffords would assign their interest in the Global Charge to Mrs Kekatos on the basis that she would hold the Charge as a trustee for herself and for the Staffords each as to a half interest.

[48]

60 On that basis, the Staffords contend that, despite the Deed of Assignment, they retained a beneficial interest in the Global Charge, the Global Mortgage, the Loan Deed and the moneys owing and secured under those instruments, on various alternative bases, broadly summarised as follows: first, that Mrs Kekatos held the Global Charge as trustee of the Penrose Trust pursuant to an express trust, the trust having been fully constituted when the Staffords assigned their interest in the Global Charge to Mrs Kekatos; secondly, that Mrs Kekatos is estopped from asserting that the assignment to her was absolute or other than as a trustee; thirdly, that Mrs Kekatos held the Global Charge for herself and the Staffords pursuant to a resulting trust arising from the assignment - in circumstances where she was not intended to take a beneficial interest beyond 50%, or upon the consideration for the assignment, or the purpose of the venture (namely the acquisition of the Penrose land for the benefit of the Staffords and Mrs Kekatos), having failed; and fourthly, that Mrs Kekatos held the Global Charge upon a constructive trust arising from the parties' common intention that she hold it in trust for the Staffords as to 50%. Alternatively, if they were not entitled to a beneficial interest in the Charge, notwithstanding the Deed of Assignment, the Staffords contend that by making the representation, through Mr Kekatos, that she would take the assignment as trustee, Mrs Kekatos made a representation with respect to a future matter without reasonable grounds, and thereby engaged in misleading and deceptive conduct in contravention of (NSW) Fair Trading Act 1987, s 42. 61 In answer to the claims to a beneficial interest in the charge, Mrs Kekatos relies inter alia on the absence of writing, invoking Conveyancing Act, 1919, ss 54A and 23C, to which the Staffords in turn advance many responses. In that context, and although the same destination may be reached by other routes, in my view the preferable analysis of the Staffords' case is founded in equitable estoppel, as explained by Brennan J in Waltons Stores (Interstate) Limited v Maher (1988) 164 CLR 387, 428:- In my opinion, to establish an equitable estoppel, it is necessary for a plaintiff to prove that (1) the plaintiff assumed that a particular legal relationship then existed between the plaintiff and the defendant or expected that a particular legal relationship would exist between them and, in the latter case, that the defendant would not be free to withdraw from the expected legal relationship; (2) the defendant has induced the plaintiff to adopt that assumption or expectation; (3) the plaintiff acts or abstains from acting in reliance on the assumption or expectation; (4) the defendant knew or intended him to do so; (5) the plaintiff's action or inaction will occasion detriment if the assumption or expectation is not fulfilled; and (6) the defendant has failed to act to avoid that detriment whether by fulfilling the assumption or expectation or otherwise. For the purposes of the second element, a defendant who has not actively induced the plaintiff to adopt an assumption or expectation will nevertheless be held to have done so if the assumption or expectation can be fulfilled only by a transfer of the defendant's property, a diminution of his rights or an increase in his obligations and he, knowing that the plaintiff's reliance on the assumption or expectation may cause detriment to the plaintiff if it is not fulfilled, fails to deny to the plaintiff the correctness of the assumption or expectation on which the plaintiff is conducting his affairs.

[87]

95 As already mentioned (see [17]), the arrangements discussed in December 2003 involved that Mrs Kekatos would be reimbursed the additional funding that it was contemplated that she would provide. And as also already mentioned (see [30]), while the discussions of August/September 2004 contemplated that in return for the assignment of the Global Charge to the trust (thus effectively increasing her interest in the Global Charge to 50%), Mrs Kekatos would provide the security and raise the funds to pay the receiver and complete the purchase, increasing the Kekatos' interest in the charge to 50% (being an increase in monetary terms of about $600,000) would not by any means compensate them for the further expenditure it was anticipated that they would incur (in the order of $2.5 million) - unless that further expenditure were to be recoverable by them in addition to the amounts already secured by the Global Charge. The Deed of Assignment admittedly recites that the Staffords had requested that Mrs Kekatos provide the further funding (they being unable to do so themselves), and the assignment is expressed to be in consideration of Mrs Kekatos providing the funding required by the receiver. However, it is entirely consistent with the dealings between the parties since late 2003 that Mrs Kekatos was to provide the funding in the first instance, so that the purchase could proceed, but subject the trustee's usual right of reimbursement. It is inherently improbable that Mrs Kekatos would have accepted open-ended liability for all receiver's remuneration and legal and other expenses that might be incurred in enforcing the charge and acquiring the land. The better view of the objective intention of the parties in context is that the increase in Mrs Kekatos' interest in the charge was intended to compensate her for assuming the risk involved in providing the security to raise the requisite funding in the first instance. In my view, her right of reimbursement and indemnity was not excluded. 96 On this basis, Mrs Kekatos is entitled to be reimbursed: