Henderson, Russell Fraser & Ors v Amadio Pty Ltd & Ors (No 2) [1996] FCA 79

Henderson, Russell Fraser & Ors v Amadio Pty Ltd & Ors (No 2) [1996] FCA 79

The prescribed interest scheme was illegal and unenforceable under the Companies Code, the applicants were members of the protected class and not in pari delicto; thus, they were entitled to recovery of monies paid to Amadio, while Amadio's claims under the mortgage and guarantee must fail. Contribution or indemnity is not available to Amadio or other participators in the unlawful scheme for losses arising therefrom. Orders were made for return of property, repayment of money, and interest, but not for contribution among wrongdoers.

Parties
Applicants: Russell Fraser Henderson and Ors; Respondents: Amadio Pty Ltd and Ors
Jurisdiction
Australia
Judgment Date
20 February 1996
Procedural Posture
Civil / Post Trial Judgment, Relief and Final Orders
Outcome
Declarations and restitution ordered; cross-claims for indemnity/contribution by Amadio and related respondents dismissed; applicants awarded monetary recovery with interest; terms for orders and further applications to follow.
Legal Topics
Illegality in Contract, Prescribed Interests, Restitution of Monies, Contribution and Indemnity, Misleading and Deceptive Conduct, Professional Indemnity Insurance, Enforcement of Mortgage and Guarantee
Corporations Law Contract Law Contribution Trade Practices Insurance Illegality in Contract Prescribed Interests Restitution of Monies +4 more

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Parties

Russell Fraser Henderson and Ors

Applicants

Amadio Pty Ltd and Ors

Respondents

Procedural Posture

Civil / Post Trial Judgment, Relief and Final Orders

Legal Issues

  1. 1 Whether relief on prescribed interest (illegality) grounds should be conditional on repayment of loan
  2. 2 Whether money paid under illegal contract can be recovered when parties are not in pari delicto
  3. 3 Whether cross-claims for contribution or indemnity are available in relation to losses from unlawful conduct

Ratio Decidendi

The prescribed interest scheme was illegal and unenforceable under the Companies Code, the applicants were members of the protected class and not in pari delicto; thus, they were entitled to recovery of monies paid to Amadio, while Amadio's claims under the mortgage and guarantee must fail. Contribution or indemnity is not available to Amadio or other participators in the unlawful scheme for losses arising therefrom. Orders were made for return of property, repayment of money, and interest, but not for contribution among wrongdoers.

Court Disposition

Declarations and restitution ordered; cross-claims for indemnity/contribution by Amadio and related respondents dismissed; applicants awarded monetary recovery with interest; terms for orders and further applications to follow.

Orders

  • Contract, transfer, mortgage, and guarantee declared void and unenforceable
  • Applicants and Walkers have judgment against Amadio for $1,331,665 (apportioned per table)