Green v Duncan [2009] NSWSC 1080

New South Wales Supreme Court

CITATION : Green v Duncan [2009] NSWSC 1080

HEARING DATE(S) : 16 - 18 September 2009

JUDGMENT DATE : 9 October 2009

JURISDICTION : Equity

JUDGMENT OF : Windeyer AJ

DECISION : Judgment for plaintiff against first defendant for $37,534.90. Judgment for second and third defendants on the plaintiff's claim.

CATCHWORDS : EQUITY - Trusts and trustees – Money received by company as fruits of litigation - Funds held as to 50% for plaintiff – Whether intention was plaintiff had interest in funds as distinct from or additional to claim in debt. - EQUITY - Tracing – Trust funds paid to superannuation fund in which first defendant had interest and to company controlled by third defendant – Whether funds could be identified, whether tracing claim maintainable unless recipient joined as defendant. - EQUITY - Barnes v Addy – Knowing receipt – Whether notice of trust - Whether denial of agreement terms found in another court relevant to knowledge. - EQUITY - Mixed Funds – Trust moneys mixed with moneys of company – Whether particular payment from account of company to first defendant identified as trust funds – Whether first defendant liable on basis of knowing receipt. - EQUITY - Barnes v Addy – Knowing assistance – Whether acts of company trustee in making payments out of trust fund acts of company through its director or acts of director – Whether actions amounted to fraudulent design. - TORTS – Conversion and deceit – Whether claimed acts those of director as opposed to acts of company through its director – Whether false representation made in deceit claim. - TRADE PRACTICES ACT – Whether false representation made. - EVIDENCE – Estoppel – Anshun Estoppel – Whether judgment in Chief Industrial Magistrate's Court prevented trust claim in Supreme Court – Whether reasonable not to bring debt and trust claims in Supreme Court. - EVIDENCE – Issue estoppel – Proceedings between plaintiff and company in Chief Industrial Magistrate's Court found in favour of plaintiff on basis of moneys owing on breach of contract – Whether one of two directors estopped by judgment as privy of company. - EVIDENCE – Estoppel – Merger in judgment – Whether the action against privy of company defendant before Chief Industrial Magistrate prevented by doctrine of merger as a result of judgment against company in another court.