Raulfs v Fishy Bite Pty Ltd [2011] NSWSC 105

Supreme Court New South Wales

Medium Neutral Citation: Raulfs v Fishy Bite Pty Ltd [2011] NSWSC 105 Hearing dates: 15-19, 26 November 2010 Decision date: 02 March 2011 Before: Rein J Decision: The first and second defendants are liable to repay the amount of $368,000 plus interest to the receiver of the partnership. The third defendant is not liable to the plaintiff or the receiver Catchwords: CONTRACTS - partners - whether partnership agreement in respect of a restaurant business should be rectified - whether there was a breach of fiduciary duty by the first defendant - whether money paid by the plaintiff to the first defendant should be repaid on the basis of a Quistclose trust, constructive trust and/or total failure of consideration - whether the second defendant, who was the sole director and a shareholder of the first defendant, is liable to repay monies paid by the plaintiff as a knowing recipient, and if so to whom - whether the de facto wife of the second defendant is liable as a volunteer to repay monies paid by the plaintiff - whether money claimed to have been paid by the plaintiff to the second defendant towards the purchase of another restaurant was paid Legislation Cited: Partnership Act 1892 (NSW) Real Property Act 1900 (NSW) Cases Cited: Agricultural and Rural Finance Pty Ltd v Gardiner [2008] HCA 57; (2008) 238 CLR 570 Baltic Shipping Co v Dillon [1993] HCA 4; (1993) 176 CLR 344 Barclays Bank Ltd v Quistclose Investments Ltd [1970] AC 567 Barnes v Addy (1874) 43 LJ Ch 513 Black v S Freedman & Co [1910] HCA 58; (1910) 12 CLR 105 Bofinger v Kingsway Group Ltd [2009] HCA 44; (2009) 239 CLR 269 Boscawen v Bajwa [1995] 4 All ER 769 Browne v Dunn (1829) 57 ER 909 Challenger Managed Investments Ltd v Direct Money Corp Pty Ltd [2003] NSWSC 1072; (2003) 59 NSWLR 452 Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502 Chan v Zacharia [1984] HCA 36; (1984) 154 CLR 178 Consul Development Pty Ltd v DPC Estates Pty Ltd (1975) 132 CLR 373 Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 Franklins Pty Ltd v Metcash Trading Ltd [2009] NSWCA 407; (2009) 264 ALR 15 Gilbert v Gonard (1884) 54 LJCL 439 Heperu Pty Ltd v Belle [2009] NSWCA 252; (2009) 76 NSWLR 230 John Nelson Developments Pty Ltd v Focus National Developments Pty Ltd [2010] NSWSC 150 Macquarie Bank Ltd v Sixty-Fourth Throne Pty Ltd [1998] 3 VR 133 Markus v Provincial Insurance Co Ltd (unreported, 11 May 1983) Marsden v Amalgamated Television Services Pty Ltd [1999] NSWSC 428 Muschinski v Dodds [1985] HCA 78; (1985) 160 CLR 583 National Commercial Banking Corp of Aust Ltd v Batty [1986] HCA 21; (1986) 160 CLR 251 Pooley v Driver (1876) 5 Ch D 458 Re Australian Elizabethan Theatre Trust (1991) 30 FCR 491 Roxborough v Rothmans of Pall Mall Australia Ltd [2001] HCA 68; (2001) 208 CLR 516 SCEGS Redlands Ltd v Barbour [2008] NSWSC 928 Twinsectra Ltd v Yardley [2002] 2 AC 164 Texts Cited: K Fletcher, Higgins and Fletcher The Law of Partnership in Australia and New Zealand, 7th ed (1996) LBC Information Services J D Heydon and M J Leeming, Jacobs' Law of Trusts in Australia, 7th ed (2008), LexisNexis Butterworths Category: Principal judgment Parties: Deborah Raulfs (Plaintiff) Fishy Bite Pty Ltd (First Defendant) Louie Ajaka (Second Defendant) Helen Ablett (Third Defendant) Representation: Counsel: Plaintiff: M L D Einfeld QC M W Sneddon