Zelden v Sewell Henamast Pty Limited v Sewell [2011] NSWCA 56

Zelden v Sewell Henamast Pty Limited v Sewell [2011] NSWCA 56

Sufficient notification of the allegations and adequate evidence existed for findings of dishonest and fraudulent conduct; equitable principles applied allowed for the remedy granted; challenges to liability and quantum lacked sufficient prospects of success; leave to appeal was not justified.

Parties
Applicant: Boris Zelden; Applicant: Henamast Pty Limited; Applicant: Elena Zelden; Respondent: Phillip Malcolm Sewell
Jurisdiction
Australia
Judgment Date
04 March 2011
Procedural Posture
Application for Leave to Appeal / Court of Appeal Determination
Outcome
Applications for leave to appeal dismissed with costs.
Legal Topics
Remedies and Procedure, Pleading, Procedural Fairness, Allegation of Dishonesty, Leave to Appeal, Interference With Judge's Findings, Breach of Fiduciary Duty, Account of Profits
Fraud Misrepresentation Undue Influence Practice and Procedure Equity Appeal Remedies and Procedure Pleading +6 more

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Parties

Boris Zelden

Applicant

Henamast Pty Limited

Applicant

Elena Zelden

Applicant

Phillip Malcolm Sewell

Respondent

Procedural Posture

Application for Leave to Appeal / Court of Appeal Determination

Legal Issues

  1. 1 Whether a judge can find dishonest conduct against a party when fraud is not specifically pleaded
  2. 2 Whether particulars need to be given of knowledge
  3. 3 Adequacy of evidence for finding of dishonesty

Ratio Decidendi

Sufficient notification of the allegations and adequate evidence existed for findings of dishonest and fraudulent conduct; equitable principles applied allowed for the remedy granted; challenges to liability and quantum lacked sufficient prospects of success; leave to appeal was not justified.

Court Disposition

Applications for leave to appeal dismissed with costs.

Orders

  • Each application dismissed with costs.