Deloitte Services Pty Ltd v HBO EMTB Interiors (NSW) Pty Ltd (In Liquidation) [2016] NSWSC 1597

Deloitte Services Pty Ltd v HBO EMTB Interiors (NSW) Pty Ltd (In Liquidation) [2016] NSWSC 1597

Projects, under Mr Fitzgerald's direction, over-invoiced Deloitte Services for amounts claimed as payable to contractors and failed to pay those amounts to contractors, in breach of an established payment practice constituting a trust and in contravention of s 18 of the ACL. Mr Fitzgerald was knowingly involved in and procured these contraventions and breaches, making him jointly liable for damages and compensation totaling $3,636,368 plus interest.

Jurisdiction
Australia
Judgment Date
15 November 2016
Procedural Posture
Principal Judgment / Liability and Remedies Decided; Parties to Bring in Draft Orders
Outcome
Plaintiff entitled to damages or compensation from third defendant (Mr Fitzgerald) in the sum of $3,636,368 plus interest. Parties to bring in draft orders.
Legal Topics
['misleading or Deceptive Conduct' 'over Invoicing' 'trusts' 'insolvent Trading' 'breach of Contract' 'accessory Liability']
['equity' 'commercial Law' 'contract Law' 'corporations Law'] ['misleading or Deceptive Conduct' 'over Invoicing' 'trusts' 'insolvent Trading' 'breach of Contract' 'accessory Liability']

Case Brief

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Procedural Posture

Principal Judgment / Liability and Remedies Decided; Parties to Bring in Draft Orders

Legal Issues

  1. 1 ['Whether defendants engaged in misleading or deceptive conduct under s 18 ACL by over-invoicing and failing to pay contractors' 'Whether there was an established payment practice creating a trust over funds paid by plaintiff' 'Whether third defendant (Mr Fitzgerald) was involved in the contraventions and/or breaches of trust' 'Whether defendants traded while insolvent and incurred relevant debts']

Ratio Decidendi

Projects, under Mr Fitzgerald's direction, over-invoiced Deloitte Services for amounts claimed as payable to contractors and failed to pay those amounts to contractors, in breach of an established payment practice constituting a trust and in contravention of s 18 of the ACL. Mr Fitzgerald was knowingly involved in and procured these contraventions and breaches, making him jointly liable for damages and compensation totaling $3,636,368 plus interest.

Court Disposition

Plaintiff entitled to damages or compensation from third defendant (Mr Fitzgerald) in the sum of $3,636,368 plus interest. Parties to bring in draft orders.

Orders

  • ['Plaintiff to provide to the third defendant by 22 November 2016 a draft of the orders that it seeks and a schedule of calculations of interest.' 'Third defendant to respond by 25 November 2016.' 'Matter stood over to 29 November 2016 for entry of judgment.']