Ridge Estate Pty Ltd v Fairfield Pastoral Holdings Pty Ltd [2024] FCAFC 17

FEDERAL COURT OF AUSTRALIA

Ridge Estate Pty Ltd v Fairfield Pastoral Holdings Pty Ltd [2024] FCAFC 17 Appeal from: Fairfield Pastoral Holdings Pty Ltd v Ridge Estate Pty Ltd (No 4) [2022] FCA 1; and Fairfield Pastoral Holdings Pty Ltd v Ridge Estate Pty Ltd (Unreported, FCA, 4 January 2022)

File numbers: SAD 9 of 2022 SAD 15 of 2022

Judgment of: BANKS-SMITH, O'SULLIVAN AND FEUTRILL JJ

Date of judgment: 23 February 2024

Catchwords: TRUSTS AND TRUSTEES - trustee removed by deed - nature and characteristics of former trustee's right of indemnity following removal - principles CONVEYANCING - fraudulent conveyance - whether deed of removal of trustee voidable under s 86 of the Law of Property Act 1936 (SA) as conveyance of property made with intent to defraud creditors - where trustee entitled to payment from trust assets pursuant to right of indemnity - whether trustee a creditor for purpose of s 86 - whether trustee a person prejudiced for purpose of s 86 - where removal denied trustee its rights of self-help and delayed payment - whether deed of removal entered into with intent to defraud creditors - whether intention to hinder, delay or defeat creditors - where primary judge declared deed of removal and underlying conveyances void - orders of primary judge upheld PRACTICE AND PROCEDURE - second appellant received secret commissions - second respondent claimed recovery of secret commissions - where principal entitled to pursue recovery of secret commissions but did not do so - where appellants denied in pleaded defence that second respondent had standing to pursue claim - where principal and second respondent entered into deed of assignment by which principal assigned all rights to pursue recovery of secret commissions to second respondent - deed of assignment not pleaded but disclosed during trial - where primary judge ruled during trial that deed of assignment admissible - primary judge held second respondent entitled by deed of assignment to pursue recovery of secret commissions - primary judge ordered second appellant to pay sum of secret commissions to second respondent - procedural fairness - whether primary judge denied appellants procedural fairness by permitting respondents to rely on unpleaded assignment - whether respondents ought to have been held to pleaded case - where legal issue raised late - role of pleadings and submissions - application of principles - whether deed of assignment 'in play' - appeal grounds dismissed COSTS - application for leave to appeal costs orders of the proceeding - where primary judge took into account outcome of thirteen claims - broad brush analysis to consideration of apportionment - applicable principles - not sufficiently arguable that House v The King error made out