Raulfs v Fishy Bite Pty Ltd; Fishy Bite Pty Ltd v Raulfs [2012] NSWCA 135

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Raulfs v Fishy Bite Pty Ltd; Fishy Bite Pty Ltd v Raulfs [2012] NSWCA 135 Hearing dates: 27 March 2012 Decision date: 11 May 2012 Before: Campbell JA at [1] Meagher JA at [113] Barrett JA at [114] Decision: (1) Appeal dismissed with costs. (2) Grant leave to cross-appeal. (3) Cross-appeal allowed with costs. (4) Set aside the orders in the court below that Mr Ajaka and Fishy Bite pay the costs of Ms Ablett of the hearing, and in lieu thereof order that Mrs Raulfs pay the costs of Ms Ablett of the hearing. (5) Grant Mrs Raulfs a certificate under the Suitors' Fund Act 1951 concerning her costs of the application for leave to cross-appeal and the cross-appeal. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: TRUSTS AND TRUSTEES - express trusts constituted inter vivos - Quistclose trust - partner paid money into capital of partnership - money subsequently misappropriated - whether misappropriated fund subject to Quistclose trust - existence of Quistclose trust depend on the circumstances - moneys paid and held for purposes of partnership - no Quistclose trust

TRUSTS AND TRUSTEES - constructive trusts - Muschinski v Dodds trust - capital contribution made to partnership which failed prematurely - specific terms of partnership agreement providing for division of assets on its termination - no Muschinski v Dodds trust