Fleming & Anor v Bobb & Ors [2012] NSWSC 826

Fleming & Anor v Bobb & Ors [2012] NSWSC 826

The plaintiffs remained the beneficial owners of the moneys paid into court because the intended arrangements under which Yu Shing Group Limited would beneficially own the funds were not completed: the plaintiffs did not sign the nominee agreements, the company was deregistered between 2000 and 2010, and at all material times investment instructions were given by the plaintiffs rather than by the company’s corporate director. The Commissioner of Taxation’s position did not require a condition on payment out because the plaintiffs had made a voluntary disclosure, amended assessments had issued, and those assessments had been paid.

Jurisdiction
Australia
Judgment Date
20 June 2012
Procedural Posture
Proceedings for Alleged Breach of Trust and Application for Payment of Moneys Held in Court / Application for Consent Orders and Declaration After Settlement Between the Plaintiffs and the First and Second Defendants
Outcome
Judgment given and consent orders and declaration made in accordance with the Short Minute of Order documents initialled and dated by the Court, with an amendment to paragraph 3.
Legal Topics
['payment of Moneys Held in Court' 'beneficial Ownership of Trust Funds' 'consent Declaration and Orders' 'offshore Investments' 'voluntary Disclosure to Australian Taxation Office']
['practice and Procedure' 'trusts' 'taxation'] ['payment of Moneys Held in Court' 'beneficial Ownership of Trust Funds' 'consent Declaration and Orders' 'offshore Investments' 'voluntary Disclosure to Australian Taxation Office']

Case Brief

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Procedural Posture

Proceedings for Alleged Breach of Trust and Application for Payment of Moneys Held in Court / Application for Consent Orders and Declaration After Settlement Between the Plaintiffs and the First and Second Defendants

Legal Issues

  1. 1 ['Whether the plaintiffs were the beneficial owners of the moneys paid into court in the proportions of 40 per cent and 60 per cent respectively.' 'Whether the proposed 1999 arrangements for Yu Shing Group Limited to beneficially own the funds were implemented.' 'Whether payment out of the funds in court should be conditional on the Commissioner of Taxation indicating no objection.']

Ratio Decidendi

The plaintiffs remained the beneficial owners of the moneys paid into court because the intended arrangements under which Yu Shing Group Limited would beneficially own the funds were not completed: the plaintiffs did not sign the nominee agreements, the company was deregistered between 2000 and 2010, and at all material times investment instructions were given by the plaintiffs rather than by the company’s corporate director. The Commissioner of Taxation’s position did not require a condition on payment out because the plaintiffs had made a voluntary disclosure, amended assessments had issued, and those assessments had been paid.

Court Disposition

Judgment given and consent orders and declaration made in accordance with the Short Minute of Order documents initialled and dated by the Court, with an amendment to paragraph 3.

Orders

  • ['Declaration made that the first and second plaintiffs are the beneficial owners of the moneys paid into court in the proportions of 40 per cent and 60 per cent respectively.' 'Orders made in accordance with the two documents entitled "Short Minute of Order" signed by the legal representatives of the parties and by...