UTi (Aust) Pty Ltd v Sheehan & Anor [2017] NSWSC 344

Supreme Court New South Wales

Medium Neutral Citation: UTi (Aust) Pty Ltd v Sheehan & Anor [2017] NSWSC 344 Hearing dates: 14, 15 November and 6 December 2016 Date of orders: 03 April 2017 Decision date: 03 April 2017 Jurisdiction: Equity Before: Slattery J Decision: First defendant found to have fraudulently procured the plaintiff to give him cheques which he paid to his company, the second defendant. Declarations made that the funds so paid are held on constructive trust for the plaintiff. Alternative claims made out. Declarations made that the first defendant is liable to the plaintiff in the sum of $2,911,411.76. Catchwords: CONSTRUCTIVE TRUST – logistics joint venture – first defendant/joint-venturer presents fraudulent invoices to the plaintiff, its fellow joint venturer – payments on the invoices directed to and received by the second defendant, a company the first defendant controls – first defendant declared bankrupt - second defendant in liquidation - plaintiff seeks declaration that the funds paid by the first defendant's actions to the second defendant are now held on constructive trust for the plaintiff – claims in the alternative for fraudulent misrepresentation, breach of the Australian Consumer Law and breach of contract. Legislation Cited: Corporations Act 2001 (Cth) Civil Procedure Act 2005, s 100 Cases Cited: Black v S Freedman & Co (1910) 12 CLR 105 BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 Briginshaw v Briginshaw (1938) 60 CLR 336 Commonwealth Bank of Australia v Barker (2014) 253 CLR 169 Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594 Derry v Peek (1889) 14 App Cas 337 Grimaldi v Chameleon Mining NL (No 2) (2012) 200 FCR 296 Heperu Pty Limited v Belle (2009) 76 NSWLR 230 Houghton v Arms (2006) 225 CLR 553 Hungerfords v Walker (1989) 171 CLR 125 Magill v Magill (2006) 226 CLR 551 MBP (SA) Pty Limited v Gogic (1991) 171 CLR 657 Paragon Finance plc v DB Thakerar & Co [1999] 1 All ER 400 Robb Evans v European Bank Ltd (2004) 61 NSWLR 75 Sze Tu v Lowe [2014] NSWCA 462 Wallersteiner v Moir (No 2) [1975] QB 373 Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2013) 250 CLR 640 Category: Principal judgment Parties: Plaintiff: UTi (Aust) Pty Ltd First Defendant: Brian Sheehan Second Defendant: Scarlet Amber Pty Ltd ACN 006 920 172 Representation: Counsel