Blue Mirror Pty Ltd v Tan & Tan Australia Pty Ltd (in liq) [2024] NSWCA 253

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Blue Mirror Pty Ltd v Tan & Tan Australia Pty Ltd (in liq) [2024] NSWCA 253 Hearing dates: 5 September 2024; written submissions 20 and 27 September and 2 October 2024 Decision date: 30 October 2024 Before: Ward P at [1]; Leeming JA at [2]; Mitchelmore JA at [164] Decision: 1. As against the first respondent, Tan & Tan Australia Pty Ltd (in liq), refuse leave to appeal. 2. As against the second respondent, Mr Anthony Tan, appeal allowed, set aside order 2 made on 1 February 2024 insofar as the plaintiff's claim against Mr Anthony Tan was dismissed, and in lieu thereof enter judgment in favour of Blue Mirror against Mr Anthony Tan in the amount of $1,000,000 plus interest calculated from 26 July 2020. 3. As against the third respondent, Australian Construction Company Pty Ltd, appeal allowed, set aside order 2 made on 1 February 2024 insofar as the plaintiff's claim against Australian Construction Company Pty Ltd was dismissed, and in lieu thereof enter judgment in favour of Blue Mirror against Australian Construction Company Pty Ltd in the amount of $6,147,000 plus interest calculated from 26 July 2020. 4. Direct the parties to file and serve agreed orders as to costs at first instance and in this Court or, in default of agreement, orders for which they contend accompanied by submissions not exceeding four pages within 14 days from today, with submissions in reply within 14 days thereafter, with a view to any question of costs being resolved on the papers. Catchwords: EQUITY – breach of fiduciary duty – knowing receipt – whether primary judge erred in rejecting plaintiffs' contention that defendants' positive case was a fabrication – significance of absence of a reply alleging documents fabricated – significance of failure to issue subpoenas – whether primary judge reversed onus – whether plaintiff had established that recipients knew of breach of duty RESTITUTION – money had and received – whether recipients were volunteers – whether recipients made out cases that money was consideration for supply of sanitiser – whether claim available where money had been repaid to or at direction of person transferring the money PLEADINGS – reply – whether fabrication of documents relied on by defendant a pleadable issue – circumstances in which findings of fabrication available Legislation Cited: A New Tax System (Goods and Services Tax) Act 1999 (Cth), s 38-185 Civil Procedure Act 2005 (NSW), s 100 Corporations Act 2001 (Cth), s 500 Evidence Act 1995 (NSW), s 140 Uniform Civil Procedure Rules 2005 (NSW), rr 14.4, 14.14, 14.27, 21.3, 51.53 Cases Cited: 3WJ Pty Ltd & Anor v Kanj [2008] NSWCA 321 Alexander v Perpetual Trustees WA Ltd (2004) 216 CLR 109; [2004] HCA 7 Barnes v Addy (1874) LR 9 Ch App 244 Black v S Freedman & Co (1910) 12 CLR 105; [1910] HCA 58 Blatch v Archer (1774) 1 Cowp 63; 98 ER 969 Blue Mirror Pty Ltd v Pegasus Australia Developments Pty Ltd (in liq) [2024] NSWSC 28 Break Fast Investments Pty Ltd v Giannopoulos (No 5) [2011] NSWSC 1508 Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Byers v Saudi National Bank [2023] UKSC 51; [2024] 2 WLR 237 Cassaniti v Ball as liquidator of RCG CBD Pty Limited (in liq) (2022) 109 NSWLR 348; [2022] NSWCA 161 Commissioner of Taxation v Ramsden [2005] FCAFC 39 Currie v Dempsey (1967) 69 SR (NSW) 116 Fistar v Riverwood Legion and Community Club Ltd (2016) 91 NSWLR 732; [2016] NSWCA 81 Foskett v McKeown [2001] 1 AC 102; [2000] UKHL 29 Ghazal v Government Insurance Office of New South Wales (1992) 29 NSWLR 336 Great Investments Ltd v Warner (2016) 243 FCR 516; [2016] FCAFC 85 Grimaldi v Chameleon Mining NL (No 2) (2012) 200 FCR 296; [2012] FCAFC 6 Helton v Allen (1940) 63 CLR 691 Heperu Pty Ltd v Belle (2009) 76 NSWLR 230; [2009] NSWCA 252 Ho v Powell (2001) 51 NSWLR 572; [2001] NSWCA 168 Jainti Pty Ltd v Fraser Panorama Pty Ltd [2021] NSWSC 744 JW Broomhead (Vic) Pty Ltd (in liq) v JW Broomhead Pty Ltd [1985] VR 891 Kalls Enterprise Pty Ltd (in liq) v Baloglow [2007] NSWCA 191; 63 ACSR 557 Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11 McFee v Reilly [2018] NSWCA 322 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; 67 ALJR 170 Nguyen v Cosmopolitan Homes [2008] NSWCA 246 Rejfek v McElroy (1965) 112 CLR 517; [1965] HCA 46 Robb Evans v European Bank Ltd (2004) 61 NSWLR 75; [2004] NSWCA 82 Russell Gould Pty Ltd v Ramangkura (2014) 87 NSWLR 552; [2014] NSWCA 310 Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262; [2000] NSWCA 29 Silversea Cruises Australia Pty Ltd v Abellanoza [2019] NSWCA 306 SSABR Pty Ltd v AMA Group Ltd [2024] NSWCA 175 State of New South Wales v Beck; Commissioner of Police v Beck [2013] NSWCA 437 Sze Tu v Lowe (2014) 89 NSWLR 317; [2014] NSWCA 462 Tantau v MacFarlane [2010] NSWSC 224 Toksoz v Westpac Banking Corporation [2012] NSWCA 199; 289 ALR 577 Turner v O'Bryan-Turner (2022) 107 NSWLR 171; [2022] NSWCA 23 Texts Cited: J Edelman, "Understanding Tracing Rules" (2016) 16(2) Queensland University of Technology Law Review 1 D Fox, Property Rights in Money (Oxford University Press, 2008) M Hafeez-Baig and J English, The Law of Tracing (Federation Press, 2021) Category: Principal judgment Parties: Blue Mirror Pty Ltd (Appellant) Tan & Tan Australia Pty Ltd (in liq) (First Respondent) Anthony Tan (Second Respondent) Australian Construction Company Pty Ltd (Third Respondent) Representation: Counsel: A Cheshire SC (Appellant) M Ashhurst SC, S Burchett (Second and Third Respondents)