Litigation and Dispute Resolution

Oscar Wylee “improperly exploited the good nature of consumers” through its false charitable promises, the Federal Court finds

8 December, 2020

Author: Catherine Osborne
Judgement Date: 2nd December, 2015
Citation: Jundi v Saco [2015] NSWSC 1835
Jurisdiction: Supreme Court of New South Wales[1]
In brief

  • The Supreme Court of New South Wales considered an application made by a plaintiff for an equitable charge over repayment of $22,400 which she made towards a loan taken out by her then partner.
  • The Court determined the case on credit issues remarking that the plaintiff had a ‘Kardashian’ expectation, a highly developed sense of entitlement and that she failed to recognise the benefits which she had received from the defendant. His Honour remarked “This is a foolish case”.
  • In order to satisfy the demands of justice and good conscience, His Honour reviewed the entire financial circumstances of the parties and determined that it would not be unconscionable and inequitable for the defendant to retain the benefit of the $22,4000 repayment. His Honour also ordered the plaintiff to pay the defendant’s costs on an indemnity basis.

Background

Ms Leanne Jundi (the plaintiff) and Mr Anthony Saco (the defendant) met in 2012. At that time the defendant owned a property at Sadlier in New South Wales (the property). The plaintiff made no contribution to the purchase price of the property.

In June 2013, the plaintiff and the defendant married, although no marriage was registered. They purchased a Lexus motor car in the plaintiff’s name pursuant to a finance agreement between the plaintiff and ANZ Esanda. They lived together in the property for a short time before moving into the plaintiff’s parents’ home in September 2013.

In October 2013, the defendant borrowed $287,000 from the National Australia Bank (NAB) secured over the Sadlier property. The defendant used the funds to pay out a previous home loan which he had to Westpac and a personal loan to Westpac. The balance was paid into a NAB account in his name and was used to pay costs associated with the loan. On 21 October 2013, the defendant transferred $20,000 from his NAB account to pay off the plaintiff’s car loan from ANZ Esanda.

Between January and March 2013, the defendant was unemployed while undertaking training in fascia and gutter work. From January 2014, the plaintiff made mortgage repayments to the NAB in the order of $800 per fortnight which totaled $22,400. The defendant at this time spent some money to set up a company for, and to purchase equipment for, his new guttering business.

The pair separated in February 2015. The plaintiff then commenced proceedings seeking to recover from the defendant the repayments of $22,400.

Supreme Court decision

Justice Pembroke found that whilst it was true that the plaintiff had contributed the amount of $22,400 in repayment of the defendant’s NAB loan, the defendant’s contributions to the financial wellbeing of the plaintiff in fact exceeded that sum. His Honour noted that the defendant’s contributions included paying the amount of $20,000 for the plaintiff’s car loan, the cost of incorporating his company and the purchase of equipment for that company. His Honour also found that the plaintiff had taken, at least indirectly, $27,000 from the account of the defendant’s company for wages based on the fact that she prepared invoices for the company. There was however no evidence that she had created any invoices for the company. The plaintiff conceded in evidence that she did not contribute in any meaningful way to the business of the company and that she had no experience as a company director.

His Honour noted that although the plaintiff’s claim was confined to a claim for an equitable charge, the principle upon which such a remedy is based is a flexible one which is imposed in order to satisfy the demands of justice and good conscience. His Honour observed that the plaintiff’s case ignored the question of whether it would be unconscionable and inequitable for the defendant to retain the benefit of the $22,400. His Honour noted that the defendant had paid $40,000 to cover the costs of the wedding and that the plaintiff had made demands for holidays, expensive clothes, extravagant nights and expensive dinners, not to mention designer shoes, clothes and trips to beauty salons. His Honour considered the entirety of the financial circumstances of the parties in the context of which the payment of $22,400 was made in order to determine whether the retention of the benefit was against conscience.

His Honour noted that:

“Everything about the plaintiff’s evidence suggested to me that she had a Kardashian expectation of her rights and a highly developed sense of entitlement. She failed to recognise the benefits which she had received or the unfairness of the single minded pursuit of her claim against the defendant…the realities of life and the law were absent from her comprehension”.2

His Honour commented on the sorry sequence of events which led to the case coming to a hearing. In deciding whether the defendant should be entitled to costs on an indemnity basis, his Honour formed the view that the proceedings were always hopeless and should never have been commenced or maintained. His Honour said he was concerned by the plaintiff’s evidence, which was motivated by desire for vindication following the breakdown of her relationship with the defendant. His Honour said the claim was misconceived insofar as it relied upon a resulting trust or a constructive trust. His Honour recognised that the plaintiff’s solicitor had provided the usual certification pursuant to s 347 of the Legal Profession Act 2004 (NSW) and that he did not suggest for one moment that the plaintiff’s solicitor did not hold that view honestly.

His Honour concluded that the interests of justice are not assisted by unmeritorious claims brought by plaintiffs with unrealistic expectations. His Honour dismissed the summons and ordered the plaintiff to pay the defendant’s costs on an indemnity basis, noting that not only was the claim hopeless but that the plaintiff refused to accept the defendant’s offer to pay the full amount of her claim as soon as she had articulated its amount.

Implications

This case serves as a warning to greedy or unmeritorious plaintiffs that the Equity Divison of the Supreme Court of New South Wales will impose equitable principles in order to satisfy the demands of justice and good conscience. The case also reinforces that plaintiffs who bring hopeless cases and refuse to accept reasonable settlement offers expose themselves to indemnity costs orders.

  1. Justice Pembroke.
  2. Jundi v Saco [2015] NSWSC 1835 at [19].

Recent Insights

View all
Litigation and Dispute Resolution

Canadian Court elevates thumbs-up emoji to signature status

In June 2023, a Canadian Court in South-West Terminal Ltd v Achter Land and Cattle Ltd, 2023 SKKB 116, held that the "thumbs-up" emoji carried enough weight to constitute acceptance of contractual terms, analogous to that of a "signature", to establish a legally binding contract.   Facts This case involved a contractual dispute between two parties namely South-West Terminal ("SWT"), a grain and crop inputs company; and Achter Land & Cattle Ltd ("ALC"), a farming corporation. SWT sought to purchase several tonnes of flax at a price of $17 per bushel, and in March 2021, Mr Mickleborough, SWT's Farm Marketing Representative, sent a "blast" text message to several sellers indicating this intention. Following this text message, Mr Mickleborough spoke with Mr Achter, owner of ALC, whereby both parties verbally agreed by phone that ALC would supply 86 metric tonnes of flax to SWT at a price of $17 per bushel, in November 2021. After the phone call, Mr Mickleborough applied his ink signature to the contract, took a photo of it on his mobile phone and texted it to Mr Archter with the text message, "please confirm flax contract". Mr Archter responded by texting back a "thumbs-up" emoji, but ultimately did not deliver the 87 metric tonnes of flax as agreed.   Issues The parties did not dispute the facts, but rather, "disagreed as to whether there was a formal meeting of the minds" and intention to enter into a legally binding agreement. The primary issue that the Court was tasked with deciding was whether Mr Achter's use of the thumbs-up emoji carried the same weight as a signature to signify acceptance of the terms of the alleged contract. Mr Mickleborough put forward the argument that the emoji sent by Mr Achter conveyed acceptance of the terms of the agreement, however Mr Achter disagreed arguing that his use of the emoji was his way of confirming receipt of the text message. By way of affidavit, Mr Achter stated "I deny that he accepted the thumbs-up emoji as a digital signature of the incomplete contract"; and "I did not have time to review the Flax agreement and merely wanted to indicate that I did receive his text message." Consensus Ad Idem In deciding this issue, the Court needed to determine whether there had been a "formal meeting of the minds". At paragraph [18], Justice Keene considered the reasonable bystander test: " The court is to look at “how each party’s conduct would appear to a reasonable person in the position of the other party” (Aga at para 35). The test for agreement to a contract for legal purposes is whether the parties have indicated to the outside world, in the form of the objective reasonable bystander, their intention to contract and the terms of such contract (Aga at para 36). The question is not what the parties subjectively had in mind, but rather whether their conduct was such that a reasonable person would conclude that they had intended to be bound (Aga at para 37)."   Justice Keene considered several factors including: The nature of the business relationship, notably that Mr Achter had a long-standing business relationship with SWT going back to at least 2015 when Mr Mickleborough started with SWT; and   The consistency in the manner by which the parties conducted their business by way of verbal conversation either in person or over the phone to come to an agreement on price and volume of grain, which would be followed by Mr Mickleborough drafting a contract and sending it to Mr Achter. Mr Mickleborough stated, "I have done approximately fifteen to twenty contracts with Achter"; and   The fact that the parties had both clearly understood responses by Mr Achter such as "looks good", "ok" or "yup" to mean confirmation of the contract and "not a mere acknowledgment of the receipt of the contract" by Mr Achter.   Judgment At paragraph [36], Keene J said: "I am satisfied on the balance of probabilities that Chris okayed or approved the contract just like he had done before except this time he used a thumbs-up emoji. In my opinion, when considering all of the circumstances that meant approval of the flax contract and not simply that he had received the contract and was going to think about it. In my view a reasonable bystander knowing all of the background would come to the objective understanding that the parties had reached consensus ad item – a meeting of the minds – just like they had done on numerous other occasions." The court satisfied that the use of the thumbs-up emoji paralleled the prior abbreviated texts that the parties had used to confirm agreement ("looks good", "yup" and "ok"). This approach had become the established way the parties conducted their business relationship.   Significance of the Thumbs-Up Emoji Justice Keene acknowledged the significance of a thumbs-up emoji as something analogous to a signature at paragraph [63]: "This court readily acknowledges that a thumbs-up emoji is a non-traditional means to "sign" a document but nevertheless under these circumstances this was a valid way to convey the two purposes of a "signature" – to identify the signator… and… to convey Achter's acceptance of the flax contract." In support of this, Justice Keene cited the dictionary.com definition of the thumbs-up emoji: "used to express assent, approval or encouragement in digital communications, especially in western cultures", confirming that the thumbs-up emoji is an "action in an electronic form" that can be used to allow express acceptance as contemplated under the Canadian Electronic Information and Documents Act 2000. Justice Keene dismissed the concerns raised by the defence that accepting the thumbs up emoji as a sign of agreement would "open the flood gates" to new interpretations of other emojis, such as the 'fist bump' and 'handshake'. Significantly, the Court held, "I agree this case is novel (at least in Skatchewan), but nevertheless this Court cannot (nor should it) attempt to stem the tide of technology and common usage." Ultimately the Court found in favour of SWT, holding that there was a valid contract between the parties and that the defendant breached by failing to deliver the flax. Keene J made a judgment against ALC for damages in the amount of $82,200.21 payable to SWT plus interest.   What does this mean for Australia? This is a Canadian decision meaning that it is not precedent in Australia. However, an Australian court is well within its rights to consider this judgment when dealing with matters that come before it with similar circumstances. This judgment is a reminder that the common law of contract has and will continue to evolve to meet the everchanging realities and challenges of our day-to-day lives. As time has progressed, we have seen the courts transition from sole acceptance of the traditional "wet ink" signature, to electronic signatures. Electronic signatures are legally recognised in Australia and are provided for by the Electronic Transactions Act 1999 and the Electronic Transactions Regulations 2020. Companies are also now able to execute certain documents via electronic means under s 127 of the Corporations Act. We have also seen the rise of electronic platforms such as "DocuSign" used in commercial relationships to facilitate the efficient signing of contracts. Furthermore, this case highlights how courts will interpret the element of "intention" when determining whether a valid contract has been formed, confirming the long-standing principle that it is to be assessed objectively from the perspective of a reasonable and objective bystander who is aware of all the relevant facts. Overall, this is an interesting development for parties engaging in commerce via electronic means and an important reminder to all to be conscious of the fact that contracts have the potential to be agreed to by use of an emoji in today's digital age.

Published by Foez Dewan
29 August, 2023
Government

Venues NSW ats Kerri Kane: Venues NSW successful in overturning a District Court decision

The McCabes Government team are pleased to have assisted Venues NSW in successfully overturning a District Court decision holding it liable in negligence for injuries sustained by a patron who slipped and fell down a set of steps at a sports stadium; Venues NSW v Kane [2023] NSWCA 192 Principles The NSW Court of Appeal has reaffirmed the principles regarding the interpretation of the matters to be considered under sections5B of the Civil Liability Act 2002 (NSW). There is no obligation in negligence for an occupier to ensure that handrails are applied to all sets of steps in its premises. An occupier will not automatically be liable in negligence if its premises are not compliant with the Building Code of Australia (BCA). Background The plaintiff commenced proceedings in the District Court of NSW against Venues NSW (VNSW) alleging she suffered injuries when she fell down a set of steps at McDonald Jones Stadium in Newcastle on 6 July 2019. The plaintiff attended the Stadium with her husband and friend to watch an NRL rugby league match. It was raining heavily on the day. The plaintiff alleged she slipped and fell while descending a stepped aisle which comprised of concrete steps between rows of seating. The plaintiff sued VNSW in negligence alleging the stepped aisle constituted a "stairwell" under the BCA and therefore ought to have had a handrail. The plaintiff also alleged that the chamfered edge of the steps exceeded the allowed tolerance of 5mm. The Decision at Trial In finding in favour of the plaintiff, Norton DCJ found that: the steps constituted a "stairwell" and therefore were in breach of the BCA due to the absence of a handrail and the presence of a chamfered edge exceeding 5mm in length. even if handrails were not required, the use of them would have been good and reasonable practice given the stadium was open during periods of darkness, inclement weather, and used by a persons of varying levels of physical agility. VNSW ought to have arranged a risk assessment of the entire stadium, particularly the areas which provided access along stepped surfaces. installation of a handrail (or building stairs with the required chamfered edge) would not impose a serious burden on VNSW, even if required on other similar steps. Issues on Appeal VNSW appealed the decision of Norton DCJ. The primary challenge was to the trial judge's finding that VNSW was in breach of its duty of care in failing to install a handrail. In addition, VNSW challenged the findings that the steps met the definition of a 'stairwell' under the BCA as well as the trial judge's assessment of damages. Decision on Appeal The Court of Appeal found that primary judge's finding of breach of duty on the part of VNSW could not stand for multiple reasons, including that it proceeded on an erroneous construction of s5B of the Civil Liability Act 2002 and the obvious nature of the danger presented by the steps. As to the determination of breach of duty, the Court stressed that the trial judge was wrong to proceed on the basis that the Court simply has regard to each of the seven matters raised in ss 5B and 5C of the CLA and then express a conclusion as to breach. Instead, the Court emphasised that s 5B(1)(c) is a gateway, such that a plaintiff who fails to satisfy that provision cannot succeed, with the matters raised in s 5B(2) being mandatory considerations to be borne in mind when determining s 5B(1)(c). Ultimately, regarding the primary question of breach of duty, the Court found that: The stadium contained hazards which were utterly familiar and obvious to any spectator, namely, steps which needed to be navigated to get to and to leave from the tiered seating. While the trial judge considered the mandatory requirements required by s5B(2) of the CLA, those matters are not exhaustive and the trial judge failed to pay proper to attention to the fact that: the stadium had been certified as BCA compliant eight years before the incident; there was no evidence of previous falls resulting in injury despite the stairs being used by millions of spectators over the previous eight years; and the horizontal surfaces of the steps were highly slip resistant when wet. In light of the above, the Court of Appeal did not accept a reasonable person in the position of VNSW would not have installed a handrail along the stepped aisle. The burden of taking the complained of precautions includes to address similar risks of harm throughout the stadium, i.e. installing handrails on the other stepped aisles. This was a mandatory consideration under s5C(a) which was not properly taken into account. As to the question of BCA compliance, the Court of Appeal did not consider it necessary to make a firm conclusion of this issue given it did not find a breach of duty.  The Court did however indicated it did not consider the stepped aisle would constitute a "stairway" under the BCA. The Court of Appeal also found that there was nothing in the trial judge's reasons explicitly connecting the risk assessment she considered VNSW ought to have carried out, with the installation of handrails on any of the aisles in the stadium and therefore could not lead to any findings regarding breach or causation. As to quantum, the Court of Appeal accepted that the trial judge erred in awarding the plaintiff a "buffer" of $10,000 for past economic loss in circumstances where there was no evidence of any loss of income. The Court of Appeal set aside the orders of the District Court and entered judgment for VNSW with costs. Why this case is important? The case confirms there is no obligation in negligence for owners and operators of public or private venues in NSW to have a handrail on every set of steps. It is also a welcome affirmation of the principles surrounding the assessment of breach of duty under s 5B and s 5C of the CLA, particularly in assessing whether precautions are required to be taken in response to hazards which are familiar and obvious to a reasonable person.

Published by Leighton Hawkes
18 August, 2023
Litigation and Dispute Resolution

Expert evidence – The letter of instruction and involvement of lawyers

The recent decision in New Aim Pty Ltd v Leung [2023] FCAFC 67 (New Aim) has provided some useful guidance in relation to briefing experts in litigation.