Armstrong Scalisi Holdings Pty Ltd v Abboud [2012] NSWSC 268

Armstrong Scalisi Holdings Pty Ltd v Abboud [2012] NSWSC 268

The $75,000 paid into CAP's trust account by Mr Lowe was the plaintiff's money and did not belong to Mr Abboud. Gino Cassaniti, as a person with authority over the trust account and ledger, removed those funds without approval and for no CAP purpose, so he was liable to account for and repay them. The funds were traced into deposits of $55,000 and $20,000 for the Flora Street and Adna Street properties. On the circumstantial evidence, reinforced by the defendants' failure to give evidence, Mrs Abboud knew that CAP documents were being used on her behalf to represent to the Bank that trust funds were held for her and her husband, and knew Gino had obtained the $75,000 from the plaintiff's...

Jurisdiction
Australia
Judgment Date
01 March 2012
Procedural Posture
Equity Division Proceedings Alleging Removal of Trust Funds, Tracing, Constructive Trust and Knowing Receipt / Principal Judgment After Ex Parte Hearing
Outcome
Relief sought by the plaintiff in its further amended statement of claim granted.
Legal Topics
['agent With Control Over Trust Property' 'removal of Trust Funds' 'priority and Notice' 'constructive Trusts' 'knowing Receipt' 'following Trust Property' 'failure to Give Evidence and Jones V Dunkel Inferences']
['equity' 'trusts' 'evidence'] ['agent With Control Over Trust Property' 'removal of Trust Funds' 'priority and Notice' 'constructive Trusts' 'knowing Receipt' 'following Trust Property' 'failure to Give Evidence and Jones V Dunkel Inferences']

Case Brief

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Procedural Posture

Equity Division Proceedings Alleging Removal of Trust Funds, Tracing, Constructive Trust and Knowing Receipt / Principal Judgment After Ex Parte Hearing

Legal Issues

  1. 1 ["Whether Gino Cassaniti wrongfully withdrew $75,000 from the plaintiff's trust account and was liable to account for and repay it." 'Whether the $75,000 could be traced into deposits paid for the Flora Street Property and Adna Street Property.' 'Whether Jillian Faith Abboud received trust property with knowledge sufficient for liability under the knowing receipt limb of Barnes v Addy.' "Whether, alternatively, Jillian Faith Abboud was a volunteer on notice of the plaintiff's claim and should reimburse the traced funds." "Whether adverse inferences could be drawn from the defendants' failure to give evidence or produce documents."]

Ratio Decidendi

The $75,000 paid into CAP's trust account by Mr Lowe was the plaintiff's money and did not belong to Mr Abboud. Gino Cassaniti, as a person with authority over the trust account and ledger, removed those funds without approval and for no CAP purpose, so he was liable to account for and repay them. The funds were traced into deposits of $55,000 and $20,000 for the Flora Street and Adna Street properties. On the circumstantial evidence, reinforced by the defendants' failure to give evidence, Mrs Abboud knew that CAP documents were being used on her behalf to represent to the Bank that trust funds were held for her and her husband, and knew Gino had obtained the $75,000 from the plaintiff's...

Court Disposition

Relief sought by the plaintiff in its further amended statement of claim granted.

Orders

  • ['Judgment entered for the plaintiff against the first and third defendants in the amount of $108,260.96.' 'Declarations and orders made in accordance with the document headed "Judgment" initialled and dated by the Court.']