Bofinger v Kingsway Group Limited [2009] HCA 44

HIGH COURT OF AUSTRALIA

GUMMOW, HAYNE, HEYDON, KIEFEL AND BELL JJ

RONALD JOHN BOFINGER & ANOR APPELLANTS

AND

KINGSWAY GROUP LIMITED FORMERLY

WILLIS & BOWRING MORTGAGE INVESTMENTS

LIMITED & ORS RESPONDENTS

Bofinger v Kingsway Group Limited [2009] HCA 44

13 October 2009

S161/2009

ORDER

1. Appeal allowed.

2. Set aside order 1 of the orders of the Court of Appeal of the Supreme Court of New South Wales entered 29 December 2008 and the orders of the Court of Appeal entered 8 July 2009 and in place thereof order that:

(a) appeal allowed;

(b) orders 1 and 2 of the orders made by Young CJ in Eq, entered 18 February 2008 be set aside; and

(c) the separate question stated on 16 November 2006 be answered as follows:

Question: In the circumstances of the case, were the sums of $268,307.33 and $432,712.53 and the securities over Lots 1 and 14 SP75069 held by the second defendant in trust for the plaintiffs as at 8 February 2006?

Answer: In the absence of prior consent or release by Mr and Mrs Bofinger, on 8 February 2006 Kingsway Group Limited was obliged to account to Mr and Mrs Bofinger as a constructive trustee for any dealing by it with the moneys and securities identified in the question for decision in favour of any other party, and to pay equitable compensation to Mr and Mrs Bofinger in respect of the

denial or limitation by such dealing of recoupment from those moneys and securities of moneys paid by Mr and Mrs Bofinger to Kingsway Group Limited, in total $1,519,234.40, from the proceeds of sale of their properties at 407 Willarong Road, Caringbah and 2/41 Bulwarra Street, Caringbah.

3. The first, second, fifth, sixth, seventh and eighth respondents pay the appellants' costs in this Court, in the Court of Appeal and of the proceedings to date in the Equity Division of the Supreme Court of New South Wales.