NSW Caselaw
New South Wales Court of Appeal
CITATION: YESHIVA PROPERTIES NO.1 PTY LIMITED & 6 ORS v JOAN MARSHALL [2005] NSWCA 23
HEARING DATE(S): 26/11/2004
JUDGMENT DATE: 17 February 2005
JUDGMENT OF: Mason P at 1; Beazley JA at 2; Bryson JA at 3
DECISION: Appeal dismissed with costs.
CATCHWORDS: TRUSTS – Constructive trusts – accessary liability – to company of person dealing with directors of company – financier lent $520,000 to companies (which were trustees of college) on "caveat loan" short term at extremely high interest on unregistered mortgage with caveat over school lands – companies resisted repayment and claimed that lender incurred accessary liability for dishonest assistance to directors – companies arrested that many irregularities in steps leading to loan and informed direction of payment to another company also controlled by directors showed involvement of lender in knowledge of facts "…which themselves would to a reasonable man, tell of fraud or breach of trust…" (Consul Development Pty Ltd v DPC Estates Pty Ltd (1975) 132 CLR 373 at 412by Stephen J) – trial judge after review of facts found no accessary liability – held – findings confirmed, appeal dismissed.
Charitable Trusts Act 1993 s.6, s.27 Charities Act 1960 s.28 Charities Procedure Act 1812 (U.K) LEGISLATION CITED: Imperial Acts Application Act 1969 s.17 Supreme Court Rules 1970 Supreme Court Act 1970 s.60, 63
Baden Delvaux & Lecuit v Societe Generale pour Favoriser le Development du Commerce [1993] 1 WLR 509 Barnes v Addy (1874) LR9ChApp 244 Cadwallader v Bajco Pty Ltd [2002] NSWCA 328 Consul Development Pty Ltd v DPC Estates Pty Ltd (1975) 132 CLR 373 Hauxwell v. Barton-Upon-Humber Urban District Council [1974] Ch 432 CASES CITED: Royal Brunei Airlines Sdn Bhd v Tan Kok Ming [1995] 2 AC 378 Twinsectra Ltd v Yardley [2002] 2 AC 164 United States Surgical Corporation v Hospital Products International Pty Ltd [1983] 2 NSWLR 157 Uniting Church in Australia Property Trust (NSW) & Anor v. Monsen & Anor [1978] 1 NSWLR 575 Yeshiva Properties No 1 Pty Ltd v Lubavitch Mazal Pty Ltd [2003] NSWSC 615
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