Glandon v Tilmunda (No 2) [2008] NSWSC 441

New South Wales Supreme Court

CITATION : Glandon v Tilmunda (No 2) [2008] NSWSC 441

HEARING DATE(S) : 1 May 2008 JUDGMENT OF : Gzell J

EX TEMPORE JUDGMENT DATE : 1 May 2008

DECISION : Consideration for transfer of interest to be deducted from account of profits. Capital account and loan account balances not to be taken in. No accessorial liability of director to account for profits in absence of evidence of receipt from corporate partner. No interest to be raised on profits in the account. Plaintiff to have indemnity costs from day after offer under the rules. Plaintiff to have full costs of the proceedings. No allowance for skill.

CATCHWORDS : EQUITY - Fiduciary Obligations - Breach by director of corporate partner - Plaintiff entitled to an account of profits - Whether consideration for transfer of interest in partnership should be deducted from account - Whether balances of captial account and loan account should be taken into account - Whether entitlement to account extended to director in absence of any evidence of his receipt of profits from corporate partner - Whether interest should be allowed on profits in the account - Whether defendant entitled to reject Calderbank offers - Whether plaintiff entitled to indemnity costs from day after offer in accordance with Uniform Civil Procedure Rules 2005, r 42.14 - Whether plaintiff entitled to full costs of proceedings - Whether any allowance for skill should be made when accounts taken on basis that director would have continued to charge for his services

LEGISLATION CITED : Civil Procedure Act 2005 Uniform Civil Procedure Rules 2005

Warman International Ltd v Dwyer [1995] HCA 18, (1995) 182 CLR 544 CASES CITED : Dart Industries Inc v Décor Corporation Pty Ltd [1993] HCA 54, (1993) 179 CLR 101 Morgan v Johnson (1998) 44 NSWLR 578 Hillier v Sheather (1995) 36 NSWLR 414