Parkview Qld Pty Ltd v Commonwealth Bank of Australia [2013] NSWCA 422

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Parkview Qld Pty Ltd v Commonwealth Bank of Australia [2013] NSWCA 422 Hearing dates: 15 October 2013 Decision date: 11 December 2013 Before: Meagher JA at [1] Ward JA at [2] Leeming JA at [117] Decision: Appeal dismissed with costs. [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: EQUITY - trusts and trustees - where retention moneys under a building and construction contract were to be held on trust - where retention moneys not separately retained - whether financier is constructive trustee of retention moneys - whether financier is trustee de son tort - whether failure to set aside retention moneys meant that no relevant trust assets or equitable obligations existed

EQUITY - trust and trustees - maxims - equity regards as done that which ought be done Legislation Cited: Building and Construction Industry Payment Act (Qld) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Barnes v Addy (1873-74) LR 9 Ch App 244 De Beers Consolidated Mines Ltd v British South Africa Co [1912] AC 52; [1911-13] All ER Rep 883 In re Barney [1892] 2 Ch 265 Mac-Jordan Construction Ltd v Brookmount Erostin Ltd (in receivership) [1992] BCLC 350 at 353 Parkview Qld Pty Ltd v Commonwealth Bank of Australia [2013] NSWSC 79 Rayack Construction Ltd v Lampeter Meat Co Ltd (1980) 12 BLR 30 Re Anstis (1886) 31 Ch D 596 Re Arthur Sanders Ltd (1981) 17 BLR 125 Texts Cited: Austin, Constructive Trusts, Finn (ed), Essays in Equity (1985) Law Book Co. McGhee, Snell's Equity, 32nd edn (2010) Sweet & Maxwell Meagher, Heydon and Leeming, Meagher, Gummow & Lehane's Equity, Doctrines & Remedies, 4th ed (2002) LexisNexis Category: Principal judgment Parties: Parkview Qld Pty Ltd (Appellant) Commonwealth Bank of Australia (Respondent) Representation: Counsel: T G R Parker SC with A R R Vincent (Appellant) S R Donaldson SC with W A D Edwards (Respondent) Solicitors: Salim Rutherford Lawyers (Appellant) Henry Davis York (Respondent) File Number(s): CA 13/078662 Decision under appeal Jurisdiction: 9111 Citation: Parkview Qld Pty Ltd v Commonwealth Bank of Australia [2013] NSWSC 79 Date of Decision: 2013-02-14 00:00:00 Before: Stevenson J File Number(s): SC 11/289953