Perpetual Trustees Australia Ltd v Heperu Pty Ltd [2009] NSWCA 84

Reported Decision: 76 NSWLR 195 Special leave granted in part by the High Court; other grounds referred to Full Court, 12 Febraury 2010 s105/2009 [2010] HCATrans16 Appeal Outcome: Judgment reserved 26-27 May 2010 [2010] HCATrans 127 and 128 Notice of discontinuance received by the High Court 25 August 2010

New South Wales Court of Appeal

CITATION: Perpetual Trustees Australia Ltd v Heperu Pty Ltd [2009] NSWCA 84 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 28 - 29 August 2008

JUDGMENT DATE: 23 April 2009

JUDGMENT OF: Allsop P at 1; Campbell JA at 161; Handley AJA at 1

1. The appeal be allowed. 2. The orders 5, 6 and 7 made by the Court below on 12 February 2008 against the fifth defendant be set aside and in lieu thereof: DECISION: a) there be judgment for the fifth defendant against the plaintiffs; and b) the plaintiffs to pay the fifth defendant's costs. 3. The respondents to pay the appellant's costs of the appeal. 4. The respondents to have certificates under the Suitors' Fund Act 1951 (NSW), if qualified.

CATCHWORDS: BANKING AND FINANCE - instruments – cheques –passing of title - delivery by an agent – apparent authority of agent – fraudulent agent - condition attaching to the agent to deliver does not have to be complied with for title to pass - no requirement of a pre-existing contractual relationship between true owner and payee other than that of the drawing and endorsement of the cheque for title to pass - BANKING AND FINANCE - instruments – cheques – conversion – voidable title – whether title of retrospective true owner of cheque related back retrospectively to the date of the fraud to allow title to sue in conversion – no conversion where payee gave value bona fide and without notice - RESTITUTION – mistake – recovery of money paid under fundamental mistake of fact or induced by fraud – unjust enrichment – circumstances where order to make restitution unjust – retention of moneys required to remain unjust – defence of change of position – payments made on faith of receipts - TORTS - negligence – duty of care – pure economic loss- trustee company managing a common fund - no duty of care to avoid economic loss to potential investors in the fund who suffer from dishonesty of their agents – no vulnerability –no direct relationship – no assumption of responsibility by the trustee company - MISLEADING DECEPTIVE OR UNCONSCIONABLE CONDUCT – representations - no representations – reliance - no relevant reliance upon the documents said to give rise to the representations – Fair Trading Act 1987 (NSW) s 42