Ryan Wealth Holdings Pty Ltd v L & V Tomkins Pty Ltd & Ors [2016] NSWSC 136

Phillips Partners acted on behalf of the Plaintiff

Hearing dates:
1, 2 and 11 February 2016
Decision date:
29 February 2016
Jurisdiction:
Equity
Before:
White J
Decision:
Refer to para [95] of judgment.
Catchwords:
CONTRACTS — loan agreement — claim that signatures on loan agreement are forgeries rejected — agreement not properly executed — agreement ratified by the commencement of proceedings to enforce the agreement — cause of action confirmed pursuant to s 54 Limitation Act 1969 (NSW) — cause of action not barred by s 14 Limitation Act 1969 (NSW) —defendant liable to the plaintiff under the agreement; MORTAGES — agreement contains promise to execute mortgage
Legislation Cited:
Limitation Act 1969 (NSW)
Duties Act 1997 (NSW)
Civil Procedure Act 2005 (NSW)
Category:
Principal judgment
Parties:
Ryan Wealth Holdings Pty Ltd (Plaintiff)
L & V Tomkins (1st Defendant)
Valerie Tomkins (2nd Defendant)
Andrew Bruce Tomkins (3rd Defendant)
Deborah Tomkins (4th Defendant)

Judgment

  1. HIS HONOUR:   On 12 May 2006 the plaintiff, Ryan Wealth Holdings Pty Ltd (“Ryan Wealth Holdings”) paid $400,000 into the account of the first defendant, L & V Tomkins Pty Ltd (“L & V Tomkins”). (It was then called Superior Body Repairs Pty Ltd.) The moneys were used by L & V Tomkins to pay pressing debts of a related company called Cardiff Gas and Welding Supplies Pty Ltd (“Cardiff Gas”). On 9 August 2006 Ryan Wealth Holdings paid $216,795 to the Australian Tax Office to discharge a tax debt owed by L & V Tomkins. At the time that payment was made the Deputy Commissioner of Taxation had commenced winding-up proceedings against L & V Tomkins. As a result of the payment the winding-up proceedings were dismissed.
  2. On 17 December 2013 the Australian Taxation Office repaid $216,795 to Ryan Wealth Holdings, but without interest. The $400,000 advance has not been repaid.

Click to read full decision here