New South Wales Court of Appeal - Decisions of Interest Search - Area of law: Equity and trusts


  1. 09/12/2016
    Equity and trusts: fiduciary duties; accessorial liability; whether director’s company knowingly participated in the director’s breach of fiduciary duties; whether director’s company received property derived from the director’s breach in the form of goodwill

    Australian Careers Institute Pty Ltd v Australian Institute of Fitness Pty Ltd  [2016] NSWCA 347
  2. 24/11/2016
    Equity and trusts: whether unconscionable bargain; whether appellant (borrower) was at a special disadvantage in her dealings with the respondent (lender); whether interest rates on short term loans unconscionable

    Wu v Ling  [2016] NSWCA 322
  3. 09/11/2016
    Equity and trusts: accessorial liability; knowing assistance; whether breach of fiduciary duty by company director gave rise to claim against law firm retained to advise in contract negotiations

    Hart Security Australia Pty Ltd v Boucousis  [2016] NSWCA 307
  4. 09/11/2016
    Equity and trusts: fiduciary relationships; sole company director; appellant company negotiating contract to provide services to third party ; negotiations at an impasse; successful negotiation depends on financial support of company’s shareholder; director pursues opportunity to secure contract on basis which involves share issue to fourth party which changes control of company and dilutes value of existing shareholding interest to nil; director stands to gain significant personal benefits from alternative proposal; respondent director in breach of fiduciary duty by pursuing proposal in circumstances where conflict between personal interest and duty

    Hart Security Australia Pty Ltd v Boucousis  [2016] NSWCA 307
  5. 03/11/2016
    Equity and trusts: unconscionable conduct and equitable proprietary estoppel; father and son residing in family home; respondent son made extensive financial contributions towards cost of holding and maintaining home; contributions made on basis of shared understanding and intention that respondent had or was entitled to an ownership interest in the home; appellant subsequently denied respondent had or was entitled to any such interest; whether primary judge erred in finding as to shared understanding and intention; whether primary erred in finding expectation in the respondent to same effect
    Behman v Behman  [2016] NSWCA 295
  6. 25/08/2016
    Equity and trusts: general principles; priority and notice; competition between interests of mortgagor and purchaser under uncompleted contract for sale of land; whether mortgagor’s interest subject to a properly exercised power of sale by mortgagee; whether breach of mortgagee’s duty owed to mortgagor when exercising power of sale pursuant to Corporations Act 2001 (Cth), s 420A, or general law duty

    Golden Mile Property Investments Pty Ltd (in liq) v Cudgegong Australia Pty Ltd  [2016] NSWCA 224
  7. 23/08/2016
    Equity and trusts: trusts; payment by trustees to third party from trust assets to settle separate proceedings against trustees personally for misapplication of trust assets; whether beneficiary consented to breach of trust; knowing receipt; liability under first limb of Barnes v Addy; release clauses contained in deeds; whether knowing recipient of trust property can rely on release clauses excluding liability of trustees for breach of trust; whether rescission of both deeds a precondition to relief; whether entire agreement clauses in each deed precluded release in one deed operating in relation to claim for breach in respect of the other; whether substantial restitution possible; defences of laches, acquiescence, delay

    Crossman v Sheahan  [2016] NSWCA 200
  8. 22/08/2016
    Equity and trusts: trusts; right of superannuation fund member; whether object of discretionary power of appointment or beneficiary with contingent beneficial interest; trustee duties; whether breach of duty to act in best interests of beneficiaries; promissory estoppel

    Commonwealth Bank Officers Superannuation Corporation Pty Ltd & Anor v Beck & Anor  [2016] NSWCA 218
  9. 26/07/2016
    Equity and trusts: construction of will creating testamentary trusts; existence and scope of power to appoint and remove trustees; whether a power to appoint a replacement trustee includes a power of removal of original trustees.

    James v Douglas  [2016] NSWCA 178
  10. 20/07/2016United Kingdom
    Equity and trusts:

    restitution; unjust enrichment; doctrine of illegality; doctrine of reliance; whether a party is precluded from recovering money paid under a contract tainted by illegality under the law of unjust enrichment.

    Mr Patel transferred sums totalling £620,000 to Mr Mirza in an agreement amounting to insider dealing, pursuant to s 52 Criminal Justice Act 1993 (UK), which did not eventuate; there was a resulting failure of consideration; Mr Patel instituted proceedings to recover the money paid.

    The Court considered the rule-based approach to the doctrine of reliance as established in Tinsley v Milligan [1994] 1 AC 340 and determined that it should no longer be followed; the Court proposed a flexible approach considering a “range of factors” when determining whether to grant or refuse to grant relief based on the doctrine of illegality; the essential rationale of the doctrine is that it would be contrary to the public interest to enforce a claim if to do so would be harmful to the integrity of the legal system; factors included in this assessment are i) the underlying purpose of the prohibition which has been transgressed, ii) any other relevant public purpose enhanced by a denial of the claim, and iii) proportionality of response.

    Australian authorities considered: [50]–[66]

    Nelson v Nelson [1995] HCA 25; 184 CLR 538

    Fitzgerald v FJ Leonhardt Pty Ltd [1997] HCA 17; 189 CLR 215

    Patel v Mirza  [2016] UKSC 42