Pethybridge v Gillard & Anor [2022] NSWSC 10

Supreme Court New South Wales

Medium Neutral Citation: Pethybridge v Gillard & Anor [2022] NSWSC 10 Hearing dates: 11 November 2021 Date of orders: 18 January 2022 Decision date: 18 January 2022 Jurisdiction: Equity - Applications List Before: Slattery J Decision: Summary judgment granted. Declarations made that the first defendant held the subject securities on trust for the plaintiff and acted in breach of trust and that the second defendant is liable under the first and second limbs of Barnes v Addy. Equitable compensation ordered. Catchwords: CIVIL PROCEDURE – Interlocutory orders – Ex parte – application for summary judgment under Uniform Civil Procedure Rules 2005, r 13.1 – where plaintiff brings proceedings against the first and second defendants in March 2021 by Statement of Claim – where the first and second defendants have not filed a defence and have not taken an active part in the proceedings – whether summary judgment should be granted. EQUITY – Fiduciary duties – Breach – Rule in Barnes v Addy – knowing receipt of trust property – where the plaintiff entrusted certain publicly listed securities to the first and second defendants to be held on his behalf – whether the first and second defendants held the securities on a common intention trust for the plaintiff – where by the actions of the first defendant, the second defendant disposed of the shares without the plaintiff's knowledge or consent – whether in breach of trust – what liability of the second defendant for breach of trust in the first defendant for knowing involvement in the first defendant's breach of trust – what is the measure of equitable compensation payable by the first and second defendants to the plaintiff. Legislation Cited: Corporations Act 2001 (Cth), s 671B Evidence Act 1995, s 140(2)(c) Uniform Civil Procedure Rules 2005, r 13.1 Cases Cited: Agar v Hyde (2000) 201 CLR 552 Allen v Snyder [1977] 2 NSWLR 685 Barnes v Addy (1874) LR 9 Ch App 244 Calverley v Green (1984) 155 CLR 242 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 135 Greater Pacific Investments Pty Limited (in Liquidation) v Australian National Industries (1996) 39 NSWLR 143 Nelson v Nelson (1995) 184 CLR 538 Shepherd v Doolan [2005] NSWSC 42 Silverton Ltd v Harvey [1975] 1 NSWLR 659 Spencer v Commonwealth of Australia (2010) 241 CLR 118 Westpac Banking Corporation v Lahood [2011] NSWSC 1057 Wickstead v Browne (1992) 30 NSWLR 1 Texts Cited: PW Young, C Croft, ML Smith, On Equity (2009, Thomson Reuters) Category: Principal judgment Parties: Plaintiff: Scott Pethybridge First Defendant: Steven Gillard Second Defendant: Lobster Beach Pty Limited ACN 127 272 342 Representation: Counsel: Plaintiff: Mr P Afshar