Green v Duncan [2009] NSWSC 1080

Green v Duncan [2009] NSWSC 1080

The agreement between Mr Green and Diosta gave Mr Green a 50% interest in the proceeds of the Monopoly litigation, which were held by Diosta on trust for him. Mr Duncan, as a privy of Diosta, is estopped from denying this agreement. Mr Duncan is personally liable as a knowing recipient of trust funds (totalling $37,534.90) due to his knowledge of the trust and receipt of identified funds. Tracing claims against other recipients failed for want of evidence and/or joinder. Claims in conversion, deceit, and under the Trade Practices Act failed due to insufficient evidence of wrong or of the required mental state, and because relevant acts were done as company acts, not personally.

Jurisdiction
Australia
Judgment Date
09 October 2009
Procedural Posture
Equity / Judgment After Trial
Outcome
Judgment for plaintiff against first defendant for $37,534.90; judgment for second and third defendants on plaintiff's claim.
Legal Topics
['trusts and Trustees' 'barnes V Addy Liability' 'tracing' 'conversion' 'deceit' 'trade Practices Act Misrepresentation' 'estoppel' 'issue Estoppel' 'merger in Judgment']
['equity'] ['trusts and Trustees' 'barnes V Addy Liability' 'tracing' 'conversion' 'deceit' 'trade Practices Act Misrepresentation' 'estoppel' 'issue Estoppel' 'merger in Judgment']

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Procedural Posture

Equity / Judgment After Trial

Legal Issues

  1. 1 ['Whether Diosta Pty Ltd held 50% of litigation proceeds on trust for Mr Green' 'Whether Mr Duncan is liable as a knowing recipient of trust funds under Barnes v Addy' 'Whether tracing of trust monies is available against defendants for payments made from Diosta' 'Whether false, misleading and deceptive representations were made under the Trade Practices Act' 'Whether claims are precluded by estoppel or merger due to prior proceedings' 'Whether other tort claims (conversion, deceit) lie against defendants']

Ratio Decidendi

The agreement between Mr Green and Diosta gave Mr Green a 50% interest in the proceeds of the Monopoly litigation, which were held by Diosta on trust for him. Mr Duncan, as a privy of Diosta, is estopped from denying this agreement. Mr Duncan is personally liable as a knowing recipient of trust funds (totalling $37,534.90) due to his knowledge of the trust and receipt of identified funds. Tracing claims against other recipients failed for want of evidence and/or joinder. Claims in conversion, deceit, and under the Trade Practices Act failed due to insufficient evidence of wrong or of the required mental state, and because relevant acts were done as company acts, not personally.

Court Disposition

Judgment for plaintiff against first defendant for $37,534.90; judgment for second and third defendants on plaintiff's claim.

Orders

  • ['Plaintiff to recover $37,534.90 against first defendant, with interest to be agreed.' 'Claims against second and third defendants dismissed.' 'Second and third defendants to have their costs; costs against first defendant to be determined after further submissions.']