Pollicino v Pollicino [2000] NSWCA 4

Pollicino v Pollicino [2000] NSWCA 4

Having accepted an accounting and payment of all sums due (including capital value and rental income) arising from his original trust interests in specified properties—and having taken no timely appeal on the refusal to extend a constructive trust to later-acquired properties—the appellant (Sam) is not entitled to...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
22 March 2000
Procedural Posture
Civil Appeal / Appeal From Supreme Court Decision Post Master's Accounting, Further Relief Sought
Outcome
Appeal dismissed with costs.
Legal Topics
['constructive Trust' 'breach of Trust' 'fiduciary Duty' 'partnership' 'just Allowances' 'tracing' 'relief for Breach of Trust']
['equity' 'trusts' 'fiduciary Duties' 'property'] ['constructive Trust' 'breach of Trust' 'fiduciary Duty' 'partnership' 'just Allowances' 'tracing' 'relief for Breach of Trust']

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Procedural Posture

Civil Appeal / Appeal From Supreme Court Decision Post Master's Accounting, Further Relief Sought

Legal Issues

  1. 1 ['Whether further relief should be granted to the appellant (Sam) regarding later-acquired properties by the trust, following prior findings of breach of fiduciary duty and imposition of constructive trusts over earlier properties.' 'Whether the appellant is entitled to a proportionate interest (or profits) in later-acquired properties based on the use of his trust interests as security or rental income.' 'Whether the appellant, having accepted full accounting of rent and sale proceeds from properties over which he had declared trust interests, can also claim proprietary relief (tracing) in subsequently acquired properties.']

Ratio Decidendi

Having accepted an accounting and payment of all sums due (including capital value and rental income) arising from his original trust interests in specified properties—and having taken no timely appeal on the refusal to extend a constructive trust to later-acquired properties—the appellant (Sam) is not entitled to further relief by way of proprietary or monetary award in respect of the later-acquired properties by reason only of the use of his previous trust interests as security or source of rental. Equity does not allow 'double dipping,' and the evidence and analysis (including the Pollprop and Pollcash exercises) do not support a further proportionate relief.

Court Disposition

Appeal dismissed with costs.

Orders

  • ['Appeal dismissed with costs.']