Arkup 2 Pty Ltd v Leech & Anor [2017] NSWSC 182

Supreme Court New South Wales

Medium Neutral Citation: Arkup 2 Pty Ltd v Leech & Anor [2017] NSWSC 182 Hearing dates: 29, 30, 31 March 2016; 1 April 2016 Decision date: 09 March 2017 Jurisdiction: Equity Before: White J Decision: 1. Judgment for the plaintiff against the first defendant in the sum of $188,052 plus interest at the rates prescribed for the purposes of s 100 of the Civil Procedure Act 2005 (NSW) from 9 August 2011 to the date of judgment. 2. Order that the plaintiff's claims be otherwise dismissed. 3. Order that the cross-claim be dismissed. Catchwords: EQUITY - trusts and trustees - whether defendant held property on constructive or resulting trust for plaintiff company – no agreement or common intention that property would be held on trust and no resulting trust - whether defendant owed plaintiff company moneys – debt not proven – whether cross-defendant made representations that property and profits from ventures would be shared equally with cross-claimant – representations not established – cross-defendant not required to account to cross-claimant – whether director of plaintiff-company and defendant were partners or parties to a joint venture – parties were not partners – parties did not enter into a joint venture - whether unconscionable for cross-defendant to deny that cross-claimant held a beneficial interest in assets – whether cross-defendant held property on constructive trust for cross-claimant – no constructive trust arose over property or profits. Legislation Cited: Civil Procedure Act 2005 (NSW) Evidence Act 1995 (NSW) Limitation Act 1969 (NSW) Superannuation Industry (Supervision) Act 1993 (Cth) Trustee Act 1925 (NSW) Cases Cited: Baumgartner v Baumgartner (1987) 164 CLR 137; [1987] HCA 59 Calverley v Green (1984) 155 CLR 242; [1984] HCA 81 Morgan v 45 Flers Avenue Pty Ltd (1986) 10 ACLR 692; (1987) 5 ACLC 222 Muschinski v Dodds (1985) 160 CLR 583; [1985] HCA 78 Palermo v Palermo [2015] WASCA 49 Shepherd v Doolan [2005] NSWSC 42 United Dominions Corporation Limited v Brian Pty Ltd (1985) 157 CLR 1; [1985] HCA 49 Watson v Foxman (1995) 49 NSWLR 315 West v Mead [2003] NSWSC 161; (2003) 13 BPR 24,431 Category: Principal judgment Parties: Arkup No. 2 Pty Ltd (Plaintiff) Alfred Mark Graham Leech (1st Defendant) Deborah Anne Leech (2nd Defendant) Representation: Counsel: G Leech, director of plaintiff (Plaintiff) M Gunning (Defendants)