H. Polesy & Co Pty Limited -v- Peter Wayne Cherry [2011] NSWSC 1335

Supreme Court New South Wales

Medium Neutral Citation: H. Polesy & Co Pty Limited -v- Peter Wayne Cherry [2011] NSWSC 1335 Hearing dates: 4 & 6 October 2011 Decision date: 06 October 2011 Jurisdiction: Equity Division - Commercial List Before: Hammerschlag J Decision: Declarations that the second defendant knowingly participated in breach of duty by the first defendant, orders for an inquiry and an account of profits Catchwords: EQUITY - Breach of fiduciary duty - where first defendant found to have breached duties to the plaintiff by channelling away to an enterprises owned by the first and second defendants business opportunities of the plaintiff - where second defendant did not dispute breaches found against the first defendant but disputed that he had knowingly assisted - found that the second defendant had knowingly assisted the first defendant - EVIDENCE - where affidavit sworn by second defendant was not read and plaintiff sought to tender parts of it as admissions - course adopted Legislation Cited: Corporations Act 2001 (Cth) Cases Cited: Farah Constructions v Say-Dee (2007) 81 ALJR 1107 H. Polesy & Co Pty Limited v Peter Wayne Cherry [2011] NSWSC 1334 Wimpole v McIlwraith [1923] VLR 553 Societe Generale pour Favoriser le Development du Commerce et de l'Industrie en France SA [1993] 1 WLR 509 Hampton Court v Crookes (1957) 97 CLR 367 Briginshaw v Briginshaw (1930) 60 CLR 336 Category: Principal judgment Parties: H. Polesy & Co Pty Limited ABN 99 000 572 458 - Plaintiff Kon Bochrinis - Second Defendant Representation: Counsel: C. Lambert - Plaintiff T. Best - Second Defendant Solicitors: O'Brien Lawyers - Plaintiff SDR Law - Second Defendant File Number(s): 2010/318449