Jaeger v Bowden (No 3) [2017] NSWSC 324

Supreme Court New South Wales

Medium Neutral Citation: Jaeger v Bowden (No 3) [2017] NSWSC 324 Hearing dates: 21 – 23 November 2016 Decision date: 31 March 2017 Jurisdiction: Equity Before: Robb J Decision: The court directs the parties to bring in short minutes of order to give effect to these reasons for judgment, and by consent of the interested parties, the court makes the orders set out in paragraph 481. Catchwords: EQUITY – Partnership – Breach of fiduciary duty – Sale of hotel owned by partnership – Whether distribution of proceeds by first defendant was a breach of fiduciary duty – Consideration of partnership agreement and subsequent modifications – Whether distribution of proceeds was ratified – Whether first defendant entitled to set off – Whether first defendant withdrew more than his share of capital from the partnership's account – Whether plaintiff entitled to an accounting – Whether accounting should be conducted on a wilful default basis – Assessment of interest.

SUCCESSION – Wills, probate and administration – Construction and effect of testamentary disposition.

PRACTICE – Effect of first judgment – Whether proceedings as against the second defendant should be dismissed. Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 Garcia v Delphino [2003] NSWSC 1001 Jaeger v Bowden (No 2) [2016] NSWSC 897 Maguire v Makaronis (1996) 188 CLR 449 Meehan v Glazier Holdings Pty Ltd (2002) 54 NSWLR 146; [2002] NSWCA 22 MLW Investments Pty Ltd v Tacsum [2006] NSWSC 1256 Union Bank of Australia Ltd v Rudder (1911) 13 CLR 152 Category: Principal judgment Parties: Kim Jaeger in her capacity as executor of the estate of the late Adelaide Emily Bowden (plaintiff) Stephen Bowden (first defendant) Jane Bowden (second defendant) Butlers Bridge Pty Ltd (third defendant) Kettleswell Pty Ltd (fourth defendant) Bowden Hotel Investments Pty Ltd (fifth defendant) Bowden Property Investments Pty Ltd (sixth defendant) Ritz Restaurants (Hurstville) Pty Ltd (seventh defendant) Hurstville Property Investments Pty Ltd (eighth defendant) Bowden Company Pty Ltd (ninth defendant) Samook Pty Ltd (tenth defendant) Representation: Counsel: Mr R Newlinds SC (plaintiff) Mr N J Beaumont SC (plaintiff) Mr C E Bannan (plaintiff) Mr M Willmott SC (first and third to tenth defendant) Mr S Philips (first and third to tenth defendant) Mr S Wheelhouse SC (second defendant) Mr M Auld (second defendant)