In the matter of Kit Digital Australia Pty Ltd (in liq) [2014] NSWSC 1547

Supreme Court New South Wales

Medium Neutral Citation: In the matter of Kit Digital Australia Pty Ltd (in liq) [2014] NSWSC 1547 Hearing dates: 2 - 4 and 11 September 2014 Decision date: 06 November 2014 Jurisdiction: Equity Division - Corporations List Before: Black J Decision: Orders made for proceedings to be dismissed and for plaintiff to pay defendants' costs of proceedings, as agreed or as assessed. Catchwords: CONTRACTS -principal and agent - existence of relationship of agency - where plaintiff and first defendant entered into pass through arrangement to provide professional consulting services to third party - whether relationship between plaintiff and first defendant constituted an agency - whether plaintiff conferred any authority on first defendant to affect its relations with third party.

EQUITY - trusts and trustees - express trust - existence of trust - intention - where no separate account established by first defendant to retain relevant monies by third party for plaintiff - whether relevant monies received by first defendant from third party was held on trust for plaintiff. Legislation Cited: - Corporations Act 2001 (Cth) s 1318 Cases Cited: - Armagas Ltd v Mundogas SA [1985] 1 Ll R 1 - Bonette v Woolworths Ltd (1937) 37 SR (NSW) 142 - Camden v McKenzie [2007] QCA 136; [2008] 1 Qd R 39 - Cohen v Cohen (1929) 42 CLR 91 - Commissioner of State Revenue (Vic) v Snowy Hydro Ltd [2012] VSCA 145 - Compass Resources Ltd v Sherman [2010] WASC 41; (2010) 42 WAR 1 - Craig v Silverbrook [2013] NSWSC 1687 - Craigcare Group Pty Ltd v Superkite Pty Ltd [2014] NSWSC 326 - Fazio v Fazio [2012] WASCA 72 - Georges (in his capacity as joint and several liquidator of Sonray Capital Markets Pty Ltd (in liq)) v Seaborn International Pty Ltd (as trustee for the Seaborn Family Trust) [2012] FCAFC 140; (2012) 206 FCR 408 - Henry v Hammond [1913] 2 KB 515 - Hoy Mobile Pty Ltd v Allphones Retail Pty Ltd (No 2) [2008] FCA 810 - Hightime Investments Pty Ltd v Adamus Resources Ltd [2012] WASC 295 - International Harvester Co of Australia Pty Ltd v Carrigan's Hazeldene Pastoral Co (1958) 100 CLR 644 - Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 - JR Consulting & Drafting Pty Ltd v Cummings [2014] NSWSC 1252 - Korda v Australian Executor Trustees (SA) Ltd [2014] VSCA 65 - Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361 Lym International Pty Ltd v Marcolongo [2011] NSWCA 303 - MSPR Pty Ltd v Advanced Braking Technology Ltd [2013] NSWCA 4 - Orica Ltd v Commissioner of Taxation [2010] FCA 197 - Raulfs v Fishy Bite Pty Ltd [2012] NSWCA 135 - Re Australian Elizabethan Theatre Trust (1991) 30 FCR 491; 102 ALR 681 - Re Colorado Products Pty Ltd (in prov liq) [2014] NSWSC 789 - Salvo v New Tel Ltd [2005] NSWCA 281 - South Sydney District Rugby League Football Club Ltd v News Ltd [2000] FCA 1541; (2000) 177 ALR 611 - State of New South Wales v Hunt [2014] NSWCA 47 - Tonto Home Loans Australia Pty Ltd v Tavares [2011] NSWCA 389 - Walker v Corboy (1990) 19 NSWLR 382 - Walsh Bay Development Pty Ltd v Federal Commissioner of Taxation (1995) 130 ALR 415 - Varma v Varma [2010] NSWSC 786 - Watson v Foxman (1995) 49 NSWLR 315 Texts Cited: - F M B Reynolds and W Bowstead, Bowstead and Reynolds on Agency (16th Ed 1996, Sweet & Maxwell) Category: Principal judgment Parties: Gestion Pty Ltd (Plaintiff) Kit Digital Australia Pty Ltd (in liq) (First Defendant) Stephen Graham Longley, Marcus William Ayres and Nicholas John Martin in their capacities as former joint and several administrators of and joint and several liquidators of Kit Digital Australia Pty Ltd (in liq) (Second Defendants) Representation: Counsel: A F Fernon (Plaintiff) D L Cook (Defendants) Solicitors: Yates Beaggi Lawyers (Plaintiff) Norton Rose Fulbright (Defendants) File Number(s): 2013/149867