JARRETT & ORS v PERPETUAL TRUSTEE CO LIMITED [2007] NSWSC 1231

Reported Decision : 64 ACSR 552

New South Wales Supreme Court

CITATION : JARRETT & ORS v PERPETUAL TRUSTEE CO LIMITED [2007] NSWSC 1231

HEARING DATE(S) : 12 to 16 February 2007; 24 May 2007

JUDGMENT DATE : 14 November 2007

JURISDICTION : Equity

JUDGMENT OF : Hall J at 1

DECISION : (1) On the findings made, I conclude that: (a) The disputed dividends claimed by the plaintiffs in the Second Further Amended Statement of Claim were validly determined and paid as dividends with the informed consent of the directors of RH & M, Elwood and UIGI. Those companies subsequently affirmed the dividends and ratified their payment by crediting them in the relevant accounts. The members of the respective companies, RAH No 1 and RAH No 2, also ratified the dividends and their payment. (b) Payment of the disputed dividends, the subject of the plaintiffs' claim under the Second Amended Statement of Claim, was not made under a mistake as therein alleged. (c) On the above conclusions, the amounts paid by way of dividend to Mrs Jarrett during her lifetime are not recoverable by the plaintiffs by way of action at law for money had and received or in equity. (d) The disputed dividends having, on the findings made, being duly declared or determined and paid, there was no power in the plaintiffs companies to revoke or rescind them. (e) Accordingly, there is to be judgment entered in favour of the defendant in relation to such dividends. (2) On the findings made in respect of the cross-claim, I have concluded: (a) The evidence does not establish that a meeting of directors of RH & M took place on or after 10 December 2001 at which an interim dividend in the amount of $6,600,000 was declared or determined. (b) The evidence does not establish that a meeting of directors of Elwood occurred on or after 10 December 2001 at which an interim dividend in the amount of $500,000 (or for $496,096.31) was declared or determined. (c) That the monies repaid by Mr Milsom to Elwood on 12 November 2002 and to RH & M on 19 November 2002 were not repaid by him upon the basis of a mistaken assumption. (d) The evidence does not establish that the reimbursement of monies referred to in the preceding paragraph arose as a consequence of the "RH & M representations" and/or the "Elwood representations" relied upon by the cross-claimant in its Amended Statement of Cross-Claim. On that basis, no contraventions of s.52 of the Trade Practices Act or of s.42 of the Fair Trading Act arose as alleged in the cross-claim. (e) It follows from the above findings that the payments made by re-imbursement to RH & M and Elwood from the estate bank account with Westpac Banking Corporation were not payments of monies held on trust for the benefit of the estate as claimed by the cross-claimant on the cross-claim. (3) The parties are requested to lodge short minutes of order.