KARA KAR HOLDINGS PTY LTD and ORS v BROOKTON HOLDINGS and ORS [1997] NSWCA 171

KARA KAR HOLDINGS PTY LTD and ORS v BROOKTON HOLDINGS and ORS

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SHELLER, POWELL and BEAZLEY JJ 6 March 1997, 27 March 1997 [1997] NSWCA 171

APPEAL AND NEW TRIAL — Points and objections not taken below — Point taken below but trial judge made no express determination — Subsequent proceedings heard on basis of an implied determination in first judgment — Extension of time for fling Notice of Grounds of Appeal — matter returned to trial judge for new trial

APPEAL AND NEW TRIAL — Leave to appeal — from interlecuto~ orders and judgments — second judgment interlocutory in nature intended to give effect to Master's determination which followed the first judgment which determined the rights of the parties.

The first appellant (Kara Kar) was the trustee of the Kara Kar Employees' Pension Fund, of which the second and third appellants (the Yardys), and the second and third respondents (the Knudsens) were members. Shares in Kara Kar were held by the Yardys and the Knudsens in the ratio of 9:1 respectively. In 1989, Mr Yardy had wrongfully caused $115,000 to be paid out of the fund for his personal use. Subsequently, Mr Knudsen left the employment of Kara Kar and the Knudsens were paid out from the money then in the fund a sum proportionate to their shareholding ratio of 9:1

At first instance Young J held that there had been a breach of trust by Kara Kar in the payment out of the fund of $115,000 for Mr Yardy's personal purposes. His Honour also held that the funds were not held beneficially for the parties in the ratio of 9:1 and that there had been a breach of trust in the trustee indicating that it wished to proceed to a distribution of the remaining funds in that ratio. His Honour referred the matter to the Master for accounting. The Master purported to take an account, and calculated the entitlements of the Knudsens based on that account, after the notional instatement of the $115,000.