Cook v Alto Prestige Pty Limited [2010] NSWSC 92

Cook v Alto Prestige Pty Limited [2010] NSWSC 92

The Load Account was intended by the parties to be held for the specific purpose of covering certain contingencies with Esanda; Alto was to 'hold', not 'own', the fund. When the purpose failed upon closure of the business and passage of time, a resulting trust arose in favour of the plaintiff and other contributors. The plaintiff was entitled to repayment of his and his assignor's contributions, subject to set-off for specified contingency payments.

Jurisdiction
Australia
Judgment Date
31 March 2010
Procedural Posture
Civil / Final Judgment
Outcome
Plaintiff entitled to declarations and order for payment of $457,063.
Legal Topics
['express and Implied Terms' 'resulting Trusts' 'remedies for Breach of Contract']
['contract' 'equity' 'trusts'] ['express and Implied Terms' 'resulting Trusts' 'remedies for Breach of Contract']

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Procedural Posture

Civil / Final Judgment

Legal Issues

  1. 1 ['Whether the parties agreed to an express or implied term for redistribution of the fund if the business closed.' 'Whether the fund was created for a specific purpose, and if the purpose failed, whether a resulting trust arose.']

Ratio Decidendi

The Load Account was intended by the parties to be held for the specific purpose of covering certain contingencies with Esanda; Alto was to 'hold', not 'own', the fund. When the purpose failed upon closure of the business and passage of time, a resulting trust arose in favour of the plaintiff and other contributors. The plaintiff was entitled to repayment of his and his assignor's contributions, subject to set-off for specified contingency payments.

Court Disposition

Plaintiff entitled to declarations and order for payment of $457,063.

Orders

  • ['Plaintiff entitled to declarations sought in paragraphs 1, 1A, 1B, and 1C of the Second Further Amended Statement of Claim.' "Declaration of contributions made on behalf of internal brokers (but not internal brokers' own contributions)." 'Declaration that Mr Blakeway/Danmow assigned to the plaintiff their rights...