McMahon v Livingstone & Ors [2001] NSWSC 55

McMahon v Livingstone & Ors [2001] NSWSC 55

Scott and Ophix knowingly participated in Livingstone's breach of trust towards beneficiaries including McMahon, but as the exact entitlements among beneficiaries could not be established, McMahon was not entitled to direct compensation but entitled to an account to be taken of moneys owing to Livingstone as trustee for distribution among beneficiaries.

Parties
Plaintiff: Brian McMahon; First Defendant: Kenneth Livingstone; Second Defendant: John Joseph Scott; Third Defendant: Ophix Finance Corporation Pty Limited; Trustee of the Bankrupt Estate of the First Defendant: B J Skinner
Jurisdiction
Australia
Judgment Date
16 February 2001
Procedural Posture
Equity / Judgment After Hearing
Outcome
Order for taking of account before a Master to determine the balance due by Scott and Ophix to the estate of Livingstone; directions for notice to trustee in bankruptcy and possible joinder; further orders to be considered after parties have an opportunity for submissions.
Legal Topics
Fiduciary Obligations, Breach of Trust, Knowing Assistance, Remedies for Breach of Trust, Taking of Accounts
Equity Fiduciary Obligations Breach of Trust Knowing Assistance Remedies for Breach of Trust Taking of Accounts

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Parties

Brian McMahon

Plaintiff

Kenneth Livingstone

First Defendant

John Joseph Scott

Second Defendant

Ophix Finance Corporation Pty Limited

Third Defendant

B J Skinner

Trustee of the Bankrupt Estate of the First Defendant

Procedural Posture

Equity / Judgment After Hearing

Legal Issues

  1. 1 Whether Scott and Ophix participated in breach of trust committed by Livingstone in relation to funds invested by McMahon
  2. 2 Whether McMahon is entitled to claim repayment or compensation directly from Scott and Ophix
  3. 3 Whether an order for taking of accounts is appropriate when funds have been mixed and beneficiaries are numerous

Ratio Decidendi

Scott and Ophix knowingly participated in Livingstone's breach of trust towards beneficiaries including McMahon, but as the exact entitlements among beneficiaries could not be established, McMahon was not entitled to direct compensation but entitled to an account to be taken of moneys owing to Livingstone as trustee for distribution among beneficiaries.

Court Disposition

Order for taking of account before a Master to determine the balance due by Scott and Ophix to the estate of Livingstone; directions for notice to trustee in bankruptcy and possible joinder; further orders to be considered after parties have an opportunity for submissions.

Orders

  • Order for proceedings on the account before a Master to determine the balance due by Scott and Ophix to the estate of Livingstone.
  • Order that Livingstone's Trustee in Bankruptcy be notified and asked to elect whether to join as plaintiff or be joined as defendant on the accounting.