COCKBURN & ORS v GIO FINANCE LTD (No 2) [2001] NSWCA 177

Reported Decision : 51 NSWLR 624

New South Wales Court of Appeal

CITATION : COCKBURN & ORS v GIO FINANCE LTD (No 2) [2001] NSWCA 177 FILE NUMBER(S) : CA 40461/00 HEARING DATE(S) : 24 May 2001 JUDGMENT DATE : 14 June 2001

PARTIES : Craig Manners COCKBURN & 5 Ors v GIO FINANCE LIMITED (No 2) JUDGMENT OF : Mason P at 1; Davies AJA at 47; Ipp AJA at 48

LOWER COURT JURISDICTION : Supreme Court LOWER COURT ED 2803/98 FILE NUMBER(S) : LOWER COURT Foster AJ JUDICIAL OFFICER :

COUNSEL : Appellants: S Donaldson SC/R Pepper Respondent: S D Robb QC/A J Silink SOLICITORS : Appellants: Colin Biggers & Paisley Respondent: Kemp Strang CATCHWORDS : Equity - equitable contribution - recoupment - undue influence - rescission - mortgage and guarantee void ab initio - whether insurance company suffered loss on discharging mortgage - whether mortgagor suffered loss under void mortgage - whether solicitor and insurance company under co-ordinate liabilities to make good the one loss- whether solicitors liable in contribution . D. DECISION : Appeal upheld. Orders made - par 85.

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40461/00 ED 2803/98 MASON P DAVIES AJA IPP AJA Thursday 14 June 2001 Craig Manners COCKBURN & ORS v GIO FINANCE LIMITED (No 2)

In 1987 Michael McNally (McNally) was rendered a quadriplegic in a car accident. McNally's claim for damages arising out of the accident was settled for $1.49 million. He was then aged 16. In 1990 McNally bought his home and the following year an investment property.

McNally's father was a trustee of the settlement moneys and generally administered his son's affairs. However, these duties became confused by his personal interests and the affairs of his business, Movie Mart.