Twigg v Twigg [2022] NSWCA 68

Twigg v Twigg [2022] NSWCA 68

Max Twigg breached fiduciary duty as director of trustee companies by causing distributions of trust property to himself and controlled entities without valid authority or resolutions, and acted dishonestly by concealing material information; proprietary claims for the trust assets are not barred by laches or limitation periods due to lack of sufficient knowledge by the beneficiary and Max's fraudulent concealment; tracing applies to assets purchased by Max's alter ego companies with Sale Proceeds; Max is not liable as trustee de son tort as he did not assume the office of trustee; the appeal is dismissed, cross-appeal allowed in part, and new orders to implement judgment required.

Parties
First Appellant: Maxwell James Twigg; Second Appellant: Twigg Landfill Pty Ltd; Third Appellant: Byron Bay Beach Hotel Properties Pty Ltd; Fourth Appellant: Twigg Consulting Pty Ltd; Fifth Appellant: B Bay H Pty Ltd; Sixth Appellant: Twigg Investments Pty Ltd; Seventh Appellant: Maly Holdings Pty Ltd; Eighth Appellant: Twigg Property Development Pty Ltd; Ninth Appellant: Twigg Motor Sport Pty Ltd; Tenth Appellant: Vision Motor Sport Pty Ltd; Eleventh Appellant: Twigg Motor Racing Pty Ltd; Twelfth Appellant: Surf Street Holdings Pty Ltd; Thirteenth Appellant: W & E Twigg Pty Ltd; Fourteenth Appellant: Twigg Co Pty Limited; First Respondent: Diane Twigg; Second Respondent: Ipswich Landfill Pty Ltd; Third Respondent: Brooklyn Landfill & Waste Recycling Pty Ltd; Fourth Respondent: Twigg Plant Hire Pty Ltd
Jurisdiction
Australia
Judgment Date
04 May 2022
Procedural Posture
Appeal / Final Judgment
Outcome
Appeal dismissed; cross-appeal allowed in part; orders for costs and further implementation to be made by respondents by short minutes.
Legal Topics
Fiduciary Duties, Constructive Trusts, Breach of Trust, Dishonest Conduct, Tracing, Laches, Limitation Periods, Director's Duties
Equity Trusts and Trustees Corporations Limitation of Actions Fiduciary Duties Constructive Trusts Breach of Trust Dishonest Conduct +4 more

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Parties

Maxwell James Twigg

First Appellant

Twigg Landfill Pty Ltd

Second Appellant

Byron Bay Beach Hotel Properties Pty Ltd

Third Appellant

Twigg Consulting Pty Ltd

Fourth Appellant

B Bay H Pty Ltd

Fifth Appellant

Twigg Investments Pty Ltd

Sixth Appellant

Maly Holdings Pty Ltd

Seventh Appellant

Twigg Property Development Pty Ltd

Eighth Appellant

Twigg Motor Sport Pty Ltd

Ninth Appellant

Vision Motor Sport Pty Ltd

Tenth Appellant

Twigg Motor Racing Pty Ltd

Eleventh Appellant

Surf Street Holdings Pty Ltd

Twelfth Appellant

W & E Twigg Pty Ltd

Thirteenth Appellant

Twigg Co Pty Limited

Fourteenth Appellant

Diane Twigg

First Respondent

Ipswich Landfill Pty Ltd

Second Respondent

Brooklyn Landfill & Waste Recycling Pty Ltd

Third Respondent

Twigg Plant Hire Pty Ltd

Fourth Respondent

Procedural Posture

Appeal / Final Judgment

Legal Issues

  1. 1 Whether distributions of trust funds to Max Twigg breached fiduciary duty
  2. 2 Whether Max Twigg acted as trustee de son tort
  3. 3 Whether Max Twigg acted dishonestly to conceal his breach

Ratio Decidendi

Max Twigg breached fiduciary duty as director of trustee companies by causing distributions of trust property to himself and controlled entities without valid authority or resolutions, and acted dishonestly by concealing material information; proprietary claims for the trust assets are not barred by laches or limitation periods due to lack of sufficient knowledge by the beneficiary and Max's fraudulent concealment; tracing applies to assets purchased by Max's alter ego companies with Sale Proceeds; Max is not liable as trustee de son tort as he did not assume the office of trustee; the appeal is dismissed, cross-appeal allowed in part, and new orders to implement judgment required.

Court Disposition

Appeal dismissed; cross-appeal allowed in part; orders for costs and further implementation to be made by respondents by short minutes.

Orders

  • Dismiss the motion for leave to amend notice of appeal.
  • Dismiss the appeal.