In the matter of Phoenix Rising Investments Pty Limited (ACN 123 623 754) [2015] NSWSC 2083

In the matter of Phoenix Rising Investments Pty Limited (ACN 123 623 754) [2015] NSWSC 2083

The correspondence between the $6000 dividend recorded in Nevilda Investments' financial statements and the cheque payable to Deborah Grace marked "dividend" made this item different from the general cases covered by the earlier in-principle ruling. On the probabilities Deborah Grace received $6000 characterised in the accounts as a dividend, but given her prima facie limited entitlement and the current shareholdings in Nevilda Holdings, rough justice required her to account for half of that amount.

Jurisdiction
Australia
Judgment Date
03 June 2015
Procedural Posture
Equity Proceeding Concerning Accounts and Inquiries and Surcharges / Principal Ex Tempore Judgment on Item 35 in the Plaintiff's Notice of Surcharges
Outcome
Surcharge 35 allowed to the extent of $3000.
Legal Topics
['equitable Remedies' 'accounts and Inquiries' 'surcharges' 'dividends' 'financial Statements']
['equity'] ['equitable Remedies' 'accounts and Inquiries' 'surcharges' 'dividends' 'financial Statements']

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Procedural Posture

Equity Proceeding Concerning Accounts and Inquiries and Surcharges / Principal Ex Tempore Judgment on Item 35 in the Plaintiff's Notice of Surcharges

Legal Issues

  1. 1 ['Whether Deborah Sharon Grace should be surcharged in respect of $6000 said to have been received by way of dividend on 2 December 2003.' 'Whether a cheque butt annotated as a dividend and financial statements recording a dividend should be preferred over tax return material and affidavit evidence denying receipt of a Nevilda Investments dividend.']

Ratio Decidendi

The correspondence between the $6000 dividend recorded in Nevilda Investments' financial statements and the cheque payable to Deborah Grace marked "dividend" made this item different from the general cases covered by the earlier in-principle ruling. On the probabilities Deborah Grace received $6000 characterised in the accounts as a dividend, but given her prima facie limited entitlement and the current shareholdings in Nevilda Holdings, rough justice required her to account for half of that amount.

Court Disposition

Surcharge 35 allowed to the extent of $3000.

Orders

  • ['Surcharge permitted to the amount of $3000.']