White v Shortall [2006] NSWSC 1379

Reported Decision : 60 ACSR 646 206 FLR 254

New South Wales Supreme Court

CITATION : White v Shortall [2006] NSWSC 1379

HEARING DATE(S) : 24/10/06; 3/11/06; 7/11/06; 8/11/06

JUDGMENT DATE : 15 December 2006

JURISDICTION : Equity

JUDGMENT OF : Campbell J

DECISION : Judgment for the plaintiff for $548,452. Defendant to pay plaintiff's costs.

CATCHWORDS : EVIDENCE – admissibility and weight of evidence concerning what the person giving evidence would have done in a certain hypothetical situation TRUSTS – certainty of subject matter – whether possible to have trust of a certain number of shares out of a larger parcel of shares - CORPORATIONS – nature of rights comprised in a share – whether the choses in action connected with company shares must be identified on a share by share basis – significance of individual numbering of shares – TRUSTS - equitable compensation for breach of trust – to whom payable – principles by which calculated – TRUSTS – whether contractual agreement not to dispose of any interest in shares makes it impossible to declare a trust of those shares – whether possibility of court orders to enforce restrictions on restricted securities (within meaning of ASX Listing Rules) makes it impossible to hold such securities on trust - effect of various restrictions on "restricted securities" (within meaning of ASX Listing Rules) on remedies for breach of trust concerning those securities – TAXATION – capital gains tax – operation of capital gains tax when trust is declared of some of a larger holding of shares – TRUSTS – whether the intention necessary to create a trust is objective or subjective – CONTRACT – whether the intention necessary to enter contractual relations is objective or subjective – CONTRACT – when provisions as to time are of the essence – CONTRACT – measure of damages for breach – EVIDENCE – burden of proof – of payment being a loan – SUCCESSION – EXECUTORS AND ADMINISTRATORS – specific legacy of a certain number of shares from a larger holding – operation of executor's assent – TRUSTS – of part of a debt – EVIDENCE – significance of a litigant giving evidence very important for her case only late in the development of the case – EQUITY – whether fiduciary duty owed by a wealthier de facto partner to a less wealthy de facto partner