Visnic v Sywak & ors [2008] NSWSC 427

Visnic v Sywak & ors [2008] NSWSC 427

No damage attributable to breach of fiduciary duty owed to plaintiff was established which has not been remedied by declaration of trust and transfer orders already made. Any liability to account for breaches owed to the company is owed to the company, not to the plaintiff, and must be pursued by the liquidator or by derivative action. Plaintiff's motion for inquiry is dismissed.

Parties
Plaintiff: Milan Visnic; First Defendant: Peter Orest Sywak; Second Defendant: Adellos Pty Limited; Third Defendant: Parlamartu Pty Limited; Fourth Defendant: Castlove Pty Limited; Fifth Defendant: Donovi Pty Limited
Jurisdiction
Australia
Judgment Date
31 March 2008
Procedural Posture
Equity / Motion for Inquiry as to Damages; Consequential Orders
Outcome
Plaintiff's Notice of Motion filed 4 October 2007 dismissed with costs; defendant's motion also effectively disposed of.
Legal Topics
Equitable Compensation, Breach of Fiduciary Duty, Causation, Account of Profits, Corporate Fiduciary Obligations
Equity Equitable Compensation Breach of Fiduciary Duty Causation Account of Profits Corporate Fiduciary Obligations

Case Brief

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Parties

Milan Visnic

Plaintiff

Peter Orest Sywak

First Defendant

Adellos Pty Limited

Second Defendant

Parlamartu Pty Limited

Third Defendant

Castlove Pty Limited

Fourth Defendant

Donovi Pty Limited

Fifth Defendant

Procedural Posture

Equity / Motion for Inquiry as to Damages; Consequential Orders

Legal Issues

  1. 1 Whether plaintiff suffered damage or loss from breach of fiduciary duty not remedied by prior orders
  2. 2 Whether defendant owes liability to account to plaintiff (shareholder) for breaches of duty owed to company

Ratio Decidendi

No damage attributable to breach of fiduciary duty owed to plaintiff was established which has not been remedied by declaration of trust and transfer orders already made. Any liability to account for breaches owed to the company is owed to the company, not to the plaintiff, and must be pursued by the liquidator or by derivative action. Plaintiff's motion for inquiry is dismissed.

Court Disposition

Plaintiff's Notice of Motion filed 4 October 2007 dismissed with costs; defendant's motion also effectively disposed of.

Orders

  • Plaintiff's motion filed 4 October 2007 dismissed, with costs
  • Order disposes of both motions