BROOKES v MARSHALL [1996] NSWCA 67

BROOKES v MARSHALL [1996] NSWCA 67

The actions of the Brookes in gaining exclusive control of Wayworld's assets deprived Wayworld of real prospects of discharging the debt to ANZ, making it inequitable for the Brookes to claim contribution from the Marshalls, thereby releasing Marshalls from contribution.

Parties
Appellant: Brookes; Respondent: Marshalls; Plaintiff: Australia & New Zealand Banking Group Ltd (ANZ); Defendant: Wayworld Pty Ltd; Third Party: Wayworld Australia Yachts Pty Ltd
Jurisdiction
Australia
Judgment Date
01 February 1996
Procedural Posture
Appeal / Court of Appeal Decision
Outcome
appeal dismissed
Legal Topics
Contribution Between Co Sureties, Application of Equitable Principles, Removal of Assets, Onus of Proof, Fiduciary Duty
Guarantee & Indemnity Equity Contribution Between Co Sureties Application of Equitable Principles Removal of Assets Onus of Proof Fiduciary Duty

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Parties

Brookes

Appellant

Marshalls

Respondent

Australia & New Zealand Banking Group Ltd (ANZ)

Plaintiff

Wayworld Pty Ltd

Defendant

Wayworld Australia Yachts Pty Ltd

Third Party

Procedural Posture

Appeal / Court of Appeal Decision

Legal Issues

  1. 1 Whether co-sureties are entitled to contribution as between themselves given alleged diversion of company assets
  2. 2 Whether conduct of a co-surety can disqualify them from relief under equitable principles
  3. 3 Whether Brookes is entitled to contribution from Marshalls despite removal of assets from Wayworld

Ratio Decidendi

The actions of the Brookes in gaining exclusive control of Wayworld's assets deprived Wayworld of real prospects of discharging the debt to ANZ, making it inequitable for the Brookes to claim contribution from the Marshalls, thereby releasing Marshalls from contribution.

Court Disposition

appeal dismissed

Orders

  • Appeal dismissed with costs.