Youyang Pty Limited v Minter Ellison Morris Fletcher [2003] HCA 15

HIGH COURT OF AUSTRALIA

GLEESON CJ,

McHUGH, GUMMOW, KIRBY AND HAYNE JJ

YOUYANG PTY LIMITED as Trustee of the

Bill Hayward Discretionary Trust APPELLANT

AND

The persons listed in Schedule 1 trading as

MINTER ELLISON MORRIS FLETCHER

and later as Minter Ellison RESPONDENT

Youyang Pty Limited v Minter Ellison Morris Fletcher

[2003] HCA 15

3 April 2003

S237/2002

ORDER

1. Appeal allowed with costs. 2. Orders 1, 2, 3, 4, 5, 7 and 8 made by the New South Wales Court of Appeal on 8 October 2001 are set aside and, in their place, order that: 3. the appeal to that Court is allowed with costs and the cross-appeal is dismissed with costs, 4. Orders 3, 4, 5 and 6 made by Brownie AJ on 16 August 2000 are set aside, 5. the respondent pay the costs of the appellant at first instance, and 6. Order 1 made by Brownie AJ on 16 August 2000 is varied so as to replace the amount of $414,009 with $500,000, together with interest thereon pursuant to s 94, Supreme Court Act 1970 (NSW) from 24 September 1993 to the date of these orders. 7. The parties have 28 days within which to file a proposed consent order to supplement order 2(d), by fixing the actual sum for interest under s 94, Supreme Court Act 1970 (NSW). In the absence of such a proposed consent order, each party is at liberty to restore the matter to a single Justice of this Court for further directions.

On appeal from the Supreme Court of New South Wales

Representation:

D F Jackson QC with A S Martin SC for the appellant (instructed by Carneys Lawyers)

T F Bathurst QC with I M Jackman SC for the respondent (instructed by Mallesons Stephen Jaques)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Youyang Pty Limited v Minter Ellison Morris Fletcher

Trusts – Express trust – Money received by firm of solicitors to be held for a specific purpose and in accordance with specific conditions – Misapplication of funds by firm – Breach of express trust – Liability of firm as trustee – When breaches of trust occurred – Remedies – Restoration of trust fund – Causation – Whether appellant suffered a recoverable loss in consequence of firm's breaches of trust – Whether appellant would not have suffered loss but for breach of trust – When loss is to be assessed.