Wade v Trnka [2006] NSWSC 1097

New South Wales Supreme Court

CITATION : Wade v Trnka [2006] NSWSC 1097

HEARING DATE(S) : 16 October 2006

JUDGMENT DATE : 16 October 2006

JURISDICTION : EQUITY DIVISION

JUDGMENT OF : Lloyd AJ

EX TEMPORE JUDGMENT DATE : 10/16/2006

DECISION : 1. The Plaintiff receive equitable compensation from the Defendant in the sum of $595,000.00; 2. The Defendant pay interest on the said sum of $595,000.00 in accordance with section 101 of the Civil Procedure Act 2005 calculated as from the date hereof until the date of payment of the same; 3. Judgment against the Defendant in the sum of $23,918.00 (being the principal sum of $5,000.00 plus interest thereon pursuant to section 100 of the Civil Procedure Act 2005 calculated as from the 1 August 1976 to 16 October 2006 in the amount of $18,918.00); 4. The Defendant pay interest on the said sum of $23,918.00 in accordance with section 101 of the Civil Procedure Act 2005 calculated as from the date hereof until the date of payment of the same; 5. The Defendant pay the Plaintiff's costs; 6. The exhibits may be returned.

CATCHWORDS : TRUSTS: - constructive trust – property settlement on dissolution of marriage – breach of agreement – fraudulent disposal of land – proceeds of sale held in fiduciary capacity – limitation of action – postponement in case of fraud – what constitutes fraud within the limitation act – continuation of fraud – equitable compensation for breach of fiduciary obligation based on loss – not affected by limitation period – compensation assessed by value of assets at the date of restitution

LEGISLATION CITED : Limitation of Actions Act 1974 (Qld) ss 10, 27, 38 Limitation Act 1969 (NSW)

Catt v Marac Australia Limited (1987) NSWLR 639 Chittick v Maxwell (1993) 118 ALR 728 Gilmore v Gilmore (1968) 71 SR (NSW) 409 CASES CITED : Nocton v Lord Ashburton [1914] AC 932 Re Dawson (1966) 2 NSWLR 211 Seymour v Seymour (1996) 40 NSWLR 358 Williams v Williams [1979] 1 NSWLR 376