Glen Eight v Home Building & Ors [2005] NSWSC 309

New South Wales Supreme Court

CITATION : Glen Eight v Home Building & Ors [2005] NSWSC 309

HEARING DATE(S) : 31 March 2005

JUDGMENT DATE : 31 March 2005

JUDGMENT OF : McDougall J at 1

DECISION : See paras [29] and [30]

CATCHWORDS : PRACTICE AND PROCEDURE - injunction - application to restrain breach of alleged trust fund - trusts - express trusts - where moneys deposited by principal into contractor's bank account - where principal is a signatory to the bank account - where contractor in administration - where funds held by administrator - whether prima facie case that funds held on trust - whether principal entitled, on resulting trust, to funds in bank account if primary trust failed - whether intention to create express trust - whether principal entitled to relief on the entire amount held by administrator - whether allowance ought to be made for the legal costs of the administrator - no question of principle

LEGISLATION CITED : Building and Construction Industry Security of Payment Act 1999

Associated Alloys Pty Limited v A C 001 452 105 Pty Limited (in liquidation) (2000) 202 CLR 588 CASES CITED : Consul Developments Pty Limited v DPC Estates Pty Limited (1975) 132 CLR 373 Salvo & Ors v New Tel (in liquidation) [2004] NSWSC 675

Glen Eight Pty Limited (Plaintiff) Home Building Pty Ltd (In administration) (Defendant 1) PARTIES : Peter Ngan (Defendant 2) Interco Pty Ltd (Defendant 3)

FILE NUMBER(S) : SC 1993/05

C R C Newlinds SC/S A Kerr (Plaintiff) COUNSEL : D Allen with S Earl (Sol) (Defendants)

Gadens (Plaintiff) SOLICITORS : Laurence & Laurence (Defendants 1 and 2) Dibbs Barker Gosling (Defendant 3)