Scrivener v Cappello [2021] NSWCA 330

Scrivener v Cappello [2021] NSWCA 330

The Court held that there was a partnership between Mr Cappello and Mr Scrivener to acquire, develop and resell the Rouse Hill properties, with profits to be shared equally, and that Tuscany held the rights on trust for the partnership. Mr Scrivener breached his fiduciary duty by failing to account for partnership profits to Mr Cappello, making him liable to pay equitable compensation. The orders were varied to reflect that Mr Scrivener was liable to Mr Cappello rather than Shaka Holdings. The requisite grounds for accessorial liability under Barnes v Addy were not fully addressed by the primary judge; however, as to the partnership fiduciary breach, the finding against Mr Scrivener stood.

Jurisdiction
Australia
Judgment Date
21 December 2021
Procedural Posture
Appeal and Cross Appeal / Judgment on Appeal and Cross Appeal
Outcome
Appeal dismissed; cross-appeal allowed; orders varied and declarations made; appellant to pay 80% of respondents' costs on appeal and cross-appeal.
Legal Topics
['fiduciary Obligations' 'partnerships and Joint Ventures' 'accessory Liability' 'equitable Compensation']
['equity' 'partnerships and Joint Ventures'] ['fiduciary Obligations' 'partnerships and Joint Ventures' 'accessory Liability' 'equitable Compensation']

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Procedural Posture

Appeal and Cross Appeal / Judgment on Appeal and Cross Appeal

Legal Issues

  1. 1 ['Whether there was a partnership between Mr Cappello and Mr Scrivener' 'Whether the appellant was an accessory to breaches of fiduciary obligations owed to the respondents' 'Entitlement to equitable compensation for breach of fiduciary duty' 'Whether accessorial liability was established under the second limb of Barnes v Addy']

Ratio Decidendi

The Court held that there was a partnership between Mr Cappello and Mr Scrivener to acquire, develop and resell the Rouse Hill properties, with profits to be shared equally, and that Tuscany held the rights on trust for the partnership. Mr Scrivener breached his fiduciary duty by failing to account for partnership profits to Mr Cappello, making him liable to pay equitable compensation. The orders were varied to reflect that Mr Scrivener was liable to Mr Cappello rather than Shaka Holdings. The requisite grounds for accessorial liability under Barnes v Addy were not fully addressed by the primary judge; however, as to the partnership fiduciary breach, the finding against Mr Scrivener stood.

Court Disposition

Appeal dismissed; cross-appeal allowed; orders varied and declarations made; appellant to pay 80% of respondents' costs on appeal and cross-appeal.

Orders

  • ['(1) Appeal dismissed.' '(2) Cross-appeal allowed.' '(3) Order 1 of the primary judge set aside and a declaration that there was a partnership between the first plaintiff and first defendant controlling and selling 88 Rouse Road, 104 Rouse Road, and 96 Cudgegong Road, Rouse Hill, with the second defendant holding...