NSW Caselaw
New South Wales Supreme Court
CITATION : Fan v Tang & Ors [2010] NSWSC 11
HEARING DATE(S) : 2 September 2009
JUDGMENT DATE : 28 January 2010
JURISDICTION : Equity
JUDGMENT OF : Slattery J at 1
DECISION : See paragraph [103] of judgment
CATCHWORDS : EQUITY - trusts and trustees - liabilities of trustees - proceedings between beneficiaries and trustees - general principles - fiduciary obligations - remedies and procedure - property purchased in name of another but purchase money not provided by that person - no evidence of intention to vest a beneficial interest in the property in the nominal purchaser - second and third defendants hold interests in the property on resulting trust - plaintiff not ordinarily resident in Australia - no contravention of Foreign Acquisitions and Takeovers Act 1975 (Cth) - property acquired by operation of law - exemption under s 12A(6) - second and third defendants encumbered trust property without receiving any corresponding benefits for the trust - second and third defendants breached their duty as trustees not to deal with trust property for their personal benefit and breached their duty of ordinary prudence as trustees - where breaches of trust by several persons contribute to the beneficiary's loss each is liable to pay compensation measured by the amount of loss attributable to their breach - third defendant breached the fiduciary duty he owed the plaintiff not to obtain any authorised benefit from his position as a fiduciary - equitable compensation ordered
LEGISLATION CITED : Corporations Act 2001 (Cth) ss 9, 109X Foreign Acquisitions and Takeovers Act 1975 (Cth) ss 12, 26A
CATEGORY : Principal judgment
Barnes v Addy (1874) LR 9 Ch App 244 Breen v Williams (1986) 186 CLR 71 Calverley v Green (1984) 155 CLR 242 Fouche v The Superannuation Fund Abroad (1952) 88 CLR 609 Greater Pacific Investments Pty Limited (in liquidation) v Australian National Industries (1996) 39 NSWLR 143 Herdegen v Federal Commissioner of Taxation (1988) 84 ALR 271 CASES CITED : Hospital Products Limited v United States Surgical Corporation (1984) 156 CLR 41 Jones v Dunkel (1959) 101 CLR 298 Keech v Sandford (1726) 25 ER 223 Keith Henry & Co Pty Limited v Stuart Walker & Co Pty Limited (1958) 100 CLR 342 Manly Council v Byrne (2004) NSWCA 123 Pilmer v Duke & Group Limited (in liquidation) (2001) 207 CLR 165 State Bank of New South Wales v Brown (2001) 38 ACSR 715 Target Holdings Limited v Redferns (A Firm) (1996) AC 421
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