Smith & Ors v Collier & Ors [2001] NSWSC 194

New South Wales Supreme Court

CITATION : Smith & Ors v Collier & Ors [2001] NSWSC 194 CURRENT JURISDICTION: Equity FILE NUMBER(S) : SC 2968/99 HEARING DATE(S) : 15/03/01-16/03/01 JUDGMENT DATE : 16 March 2001

James Edwin Smith (1st Plaintiff) Mark Lewis Graham (2nd Plaintiff) PARTIES : Gary Jon Fox (3rd Plaintiff) Denice Susan Collier (1st Defendant) National Australia Bank Ltd (2nd Defendant) Esanda Finance Corporation Ltd (3rd Defendant) JUDGMENT OF : Simos J

A Colefax (Plaintiffs) D S Collier (in person) (1st Defendant) COUNSEL : L Einstein (2nd Defendant) A Wright (Solicitor) (3rd Defendant)

Mullane & Lindsay (Plaintiffs) SOLICITORS : Dibbs Barker Gosling (2nd Defendant) Luscombe Wright (3rd Defendant) CATCHWORDS : Express Trust - monies received into solicitors' trust account on terms of express trust - Held, certain payments out of trust account were made in breach of trust. - Legal Profession Act 1987 section 61 - monies received into solicitors' trust account on terms of express trust - Held, monies were received by solicitors on behalf of all beneficiaries of the express trust within the meaning of section 61 of the Act. LEGISLATION CITED : Legal Profession Act 1987 Adams v Bank of NSW (1984) 1 NSWLR 285 CASES CITED : Barnes v Addy (1874) 9 Ch App 244 Consul Development Pty Ltd v D P C Estates Pty Ltd (1975) 132 CLR 373 US Surgical Corp v Hospital Products International Pty Ltd (1982) 2 NSWLR 766 DECISION : Monies paid out of solicitors' trust account were paid in breach of trust.