NSW Caselaw
New South Wales Supreme Court
CITATION : Samuel John Malouf v MBF Australia Limited [2007] NSWSC 1020
HEARING DATE(S) : 30/8/07, 31/8/07
JUDGMENT DATE : 14 September 2007
JURISDICTION : Equity Division
JUDGMENT OF : Einstein J
DECISION : Plaintiff's case made out. Parties to bring in short minutes of order on which occasion final orders can be made and costs may be argued.
CATCHWORDS : Equity - Fraud committed on plaintiff by third party - Proceeds of fraud automatically impressed with trust - Proceeds of fraud received by defendant - Whether defendant bona fide purchaser for value without notice - Barnes v Addy - Constructive trust - Lease contract between plaintiff and defendant executed subsequent to defendant acquiring notice - Contract - Whether an informal license or tenancy arrangement arose upon third party taking up possession of defendant's premises - Want of consideration for the cheque received by the defendant - Defendant's decision to allow tenant into possession was not the quid pro quo for the funds the defendant received
LEGISLATION CITED : Crimes Act 1900 (NSW)
Agip (Africa) Ltd v Jackson [1990] 1 Ch 265 Barclays Bank Ltd v Quistclose Investments Ltd [1970] AC 567 Barnes v Addy (1874) LR 9 Ch App 244 Black v S Freedman & Company (1910) 12 CLR 105 Cashflow Finance Pty Ltd (in liq) v Westpac Banking Corporation [1999] NSWSC 671 David Securities Pty Limited v Commonwealth Bank of Australia (1992) 175 CLR 353 Evans v European Bank Ltd (2004) 61 NSWLR 75 Kalls Enterprises Pty Limited (In Liquidation) v Baloglow [2007] NSWCA 191 CASES CITED : Lazarus Estates Ltd v Beasley [1956] 1 QB 702 Lipkin Gorman v Karpnale Limited [1991] 2 AC 548 Menzies v Perkins [2000] NSWSC 40 Nelson v Larholt [1948] 1 KB 339 Orix Australia Corporation Limited v Moody Kiddell & Partners Pty Limited [2005] NSWSC 1209 Roxborough v Rothmans of Pall Mall Australia Ltd (2001) 208 CLR 516 Spangaro v Corporate Investment Australia Funds Management Limited (2003) 47 ACSR 285 SZFDE v Minister for Immigration and Citizenship [2007] HCA 35 Yaroomba Beach Development Co v Coeur De Lion Investments (1989) 18 NSWLR 398
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