Coulton v Coulton [2008] NSWSC 910

New South Wales Supreme Court

CITATION : Coulton v Coulton [2008] NSWSC 910

HEARING DATE(S) : 24 April 2008 23 May 2008

JUDGMENT DATE : 4 September 2008

JUDGMENT OF : McLaughlin AsJ

1. I order that the notice of motion filed by the Fifth Defendant on 11 February 2008 be dismissed. 2. I order that the Fifth Defendant pay the costs of the Plaintiff of the aforesaid notice of motion. DECISION : 3. The exhibits may be returned. 4. I grant leave to the Plaintiff to file and serve on or before 18 September 2008 a further amended statement of claim. 5. I reserve to the parties liberty to apply in respect to costs, consequent upon the filing of such a further amended statement of claim and in respect to any application for variation of Order 2 hereof. 6. Stand over to Thursday, 25 September 2008 before the Registrar.

CATCHWORDS : PRACTICE - application for summary dismissal - whether Plaintiff's claim discloses a reasonable cause of action - whether release of a fiduciary also effects a release of a person who knowingly participates in the wrongful conduct of the fiduciary - constructive trust - indefeasibility of title to land.

LEGISLATION CITED : Real Property Act 1900 Water Act 1912

Barnes v Addy (1874) LR 9 Ch App 244 First and Merchants National Bank of Richmond v Bank of Waverly (8 June 1938) 170 Va 469, 197 SE 462 General Steel Industries Inc. v Commissioner for Railways (1964) 112 CLR 125 CASES CITED : Muschinski v Dodds (1985) 160 CLR 583 Baumgartner v Baumgartner (1987) 164 CLR 137 LHK Nominees Pty Ltd v Kenworthy (2002) 26 WAR 517 Farah Constructions Pty Limited v Say-Dee Pty Limited [2007] HCA 22; (2007) 230 CLR 89