Ellestra Pty Ltd v Farmakis [2018] NSWSC 613

Ellestra Pty Ltd v Farmakis [2018] NSWSC 613

The defendant, as recipient of the $250,000 security bond, received the money on trust for the plaintiff with knowledge that it was to be kept in a trust account and only released upon the plaintiff's authorisation or the purpose being fulfilled; the withdrawals by the defendant were unauthorised, constituting a...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
08 May 2018
Procedural Posture
Equity Proceeding / Judgment After Hearing; Directions for Plaintiff to File Short Minutes of Orders
Outcome
Plaintiff entitled to relief for breach of trust; directed to file short minutes of orders to give effect to the judgment.
Legal Topics
['resulting Trust' 'breach of Trust' 'fraudulent Breach of Trust' 'burden of Proof' 'presumption From Failure to Give Evidence' 'limitation Period for Trust Claims' 'trust Account Obligations' 'transfer of Proceedings']
['equity' 'trusts and Trustees' 'evidence' 'limitation of Actions'] ['resulting Trust' 'breach of Trust' 'fraudulent Breach of Trust' 'burden of Proof' 'presumption From Failure to Give Evidence' 'limitation Period for Trust Claims' 'trust Account Obligations' 'transfer of Proceedings']

Source-derived case record

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Equity Proceeding / Judgment After Hearing; Directions for Plaintiff to File Short Minutes of Orders

Legal Issues

  1. 1 ["Whether $250,000 'security bond' was held on trust by the defendant for the plaintiff's benefit" 'Whether money was received by the defendant in breach of trust' 'Whether the action is barred by s 48 of the Limitation Act 1969 (NSW)' 'Whether fraudulent breach of trust extends limitation period']

Ratio Decidendi

The defendant, as recipient of the $250,000 security bond, received the money on trust for the plaintiff with knowledge that it was to be kept in a trust account and only released upon the plaintiff's authorisation or the purpose being fulfilled; the withdrawals by the defendant were unauthorised, constituting a fraudulent breach of trust. Such fraudulent breach brings the claim within the extended limitation period, and the plaintiff is entitled to relief.

Court Disposition

Plaintiff entitled to relief for breach of trust; directed to file short minutes of orders to give effect to the judgment.

Orders

  • ['Plaintiff to file short minutes of orders to reflect the conclusions reached in the reasons of 8 May 2018.']