In the matter of Allco Securities Pty Limited [2011] NSWSC 1250

In the matter of Allco Securities Pty Limited [2011] NSWSC 1250

The evidence sufficiently established that the defendant was used as a receptacle for investment syndicate assets, that the plaintiffs paid for the shares recorded in the defendant's name, that the defendant's records treated the syndicate members as the real owners, that dividends were passed through to them, and that their respective proportions were proved. The lack of written declaration or acknowledgement of trust, except for Mr Jones, did not prevent relief because the relevant statutory writing requirements did not apply or were excepted in the circumstances. The plaintiffs therefore made out a case for the orders sought.

Jurisdiction
Australia
Judgment Date
21 October 2011
Procedural Posture
Equity Division Corporations List / Principal Judgment on Amended Originating Process Filed on 4 October 2011
Outcome
Make orders 1, 3, 5, 6 and 7 in the amended originating process filed on 4 October 2011.
Legal Topics
['creation of Trust' 'nominee Shareholding' 'investment Syndicate Shares' 'statute of Frauds' 'receiver Sale or Realisation of Shares']
['trusts and Trustees' 'corporations'] ['creation of Trust' 'nominee Shareholding' 'investment Syndicate Shares' 'statute of Frauds' 'receiver Sale or Realisation of Shares']

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Procedural Posture

Equity Division Corporations List / Principal Judgment on Amended Originating Process Filed on 4 October 2011

Legal Issues

  1. 1 ['Whether Allco Securities Pty Ltd held shares in Unique World Group Pty Ltd as trustee or nominee for the plaintiffs in the proportions claimed.' 'Whether the absence of an explicit written declaration or acknowledgement of trust executed by the defendant, except in the case of Mr Jones, prevented recognition of the trust.' 'Whether orders should be made empowering the receiver to commit the shares to a more complex realisation transaction and account to the plaintiffs according to their proportionate interests.']

Ratio Decidendi

The evidence sufficiently established that the defendant was used as a receptacle for investment syndicate assets, that the plaintiffs paid for the shares recorded in the defendant's name, that the defendant's records treated the syndicate members as the real owners, that dividends were passed through to them, and that their respective proportions were proved. The lack of written declaration or acknowledgement of trust, except for Mr Jones, did not prevent relief because the relevant statutory writing requirements did not apply or were excepted in the circumstances. The plaintiffs therefore made out a case for the orders sought.

Court Disposition

Make orders 1, 3, 5, 6 and 7 in the amended originating process filed on 4 October 2011.

Orders

  • ['Orders in items 1, 3, 5, 6 and 7 of the amended originating process filed on 4 October 2011.' 'Orders empowering the receiver to commit the shares to a more complex realisation transaction and, having done so, to account to the plaintiffs for the consideration received with their participation according to the...