Pethybridge v Gillard & Anor [2022] NSWSC 10

Pethybridge v Gillard & Anor [2022] NSWSC 10

Summary judgment was granted because the plaintiff's evidence satisfied UCPR r 13.1 and established, with no defence filed or apparent, that $100,000 provided by the plaintiff was used to acquire 500,000 Betmakers shares held by Lobster Beach on trust for him; Lobster Beach sold those shares without the plaintiff's knowledge or consent and breached trust; Mr Gillard controlled Lobster Beach's dealings with the shares, knowingly dealt with trust property in breach of trust and was knowingly involved in a dishonest scheme to conceal the sale; and equitable compensation was properly assessed by reference to the Betmakers closing price of $1.06 per share on 10 November 2021, producing $530,000.

Jurisdiction
Australia
Judgment Date
18 January 2022
Procedural Posture
Equity Proceeding Seeking Declarations and Equitable Compensation for Breach of Trust and Barnes V Addy Liability / Plaintiff's Notice of Motion for Summary Judgment Under Uniform Civil Procedure Rules 2005, R 13.1; Defendants Filed No Defence and Did Not Appear
Outcome
Summary judgment granted. Declarations made and equitable compensation ordered for the plaintiff.
Legal Topics
['summary Judgment' 'ex Parte Hearing' 'breach of Trust' 'resulting Trust' 'common Intention Constructive Trust' 'knowing Receipt' 'knowing Involvement in Dishonest Breach of Trust' 'equitable Compensation' 'barnes V Addy Liability']
['civil Procedure' 'equity' 'trusts'] ['summary Judgment' 'ex Parte Hearing' 'breach of Trust' 'resulting Trust' 'common Intention Constructive Trust' 'knowing Receipt' 'knowing Involvement in Dishonest Breach of Trust' 'equitable Compensation' 'barnes V Addy Liability']

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Procedural Posture

Equity Proceeding Seeking Declarations and Equitable Compensation for Breach of Trust and Barnes V Addy Liability / Plaintiff's Notice of Motion for Summary Judgment Under Uniform Civil Procedure Rules 2005, R 13.1; Defendants Filed No Defence and Did Not Appear

Legal Issues

  1. 1 ['Whether summary judgment should be granted under Uniform Civil Procedure Rules 2005, r 13.1 where the defendants had filed no defence and taken no active part in the proceedings' 'Whether Lobster Beach held 500,000 Betmakers shares on trust for the plaintiff' 'Whether Lobster Beach disposed of the shares in breach of trust' 'Whether Mr Gillard was liable under the first and second limbs of Barnes v Addy' 'What equitable compensation was payable for the loss of the shares']

Ratio Decidendi

Summary judgment was granted because the plaintiff's evidence satisfied UCPR r 13.1 and established, with no defence filed or apparent, that $100,000 provided by the plaintiff was used to acquire 500,000 Betmakers shares held by Lobster Beach on trust for him; Lobster Beach sold those shares without the plaintiff's knowledge or consent and breached trust; Mr Gillard controlled Lobster Beach's dealings with the shares, knowingly dealt with trust property in breach of trust and was knowingly involved in a dishonest scheme to conceal the sale; and equitable compensation was properly assessed by reference to the Betmakers closing price of $1.06 per share on 10 November 2021, producing $530,000.

Court Disposition

Summary judgment granted. Declarations made and equitable compensation ordered for the plaintiff.

Orders

  • ['Declare that from on or about 22 November 2016, the second defendant held 500,000 ordinary shares in Betmakers Technology Group Ltd (ACN 164 521 395) on trust for the plaintiff.' 'Declare that the second defendant disposed of the Securities and appropriated the proceeds thereof in breach of its obligations as...