HANS-JUERGEN BOEWE v. ROLAND JOHN JEANS AND ANOTHER

HANS-JUERGEN BOEWE v. ROLAND JOHN JEANS AND ANOTHER

Court found that Quistclose trusts existed between the plaintiffs and the company/1st defendant (funds were intended for share subscriptions) but no Quistclose trusts were created between the plaintiffs and the 2nd defendant; the 2nd defendant received funds as agent of its client without notice of a trust and paid out in good faith on client instructions; accordingly the 2nd defendant was not liable for breach of trust and was entitled to rely on the defence of change of position to the restitution claim, so plaintiffs' claims against the 2nd defendant were dismissed and costs awarded to the 2nd defendant.

Citation
HANS-JUERGEN BOEWE v. ROLAND JOHN JEANS AND ANOTHER
Parties
Plaintiff: William Thomson; Plaintiff: Hans-Juergen Boewe; 1st Defendant: Roland John Jeans; 2nd Defendant: Tanner de Witt (a firm)
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
19 September 2014
Case Number
DCCJ3389/2005
Procedural Posture
Civil Action (investment Dispute; Trust and Restitution) / Judgment After Trial
Outcome
Plaintiffs' claims against 2nd defendant Tanner de Witt dismissed
Legal Topics
Quistclose Trust, Breach of Trust, Money Had and Received, Change of Position, Ministerial Receipt, Solicitor Client Account
Source Language
EN
Trusts Equity Unjust Enrichment Restitution Civil Procedure Quistclose Trust Breach of Trust Money Had and Received +3 more

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Parties

William Thomson

Plaintiff

Hans-Juergen Boewe

Plaintiff

Roland John Jeans

1st Defendant

Tanner de Witt (a firm)

2nd Defendant

Procedural Posture

Civil Action (investment Dispute; Trust and Restitution) / Judgment After Trial

Legal Issues

  1. 1 Whether payments into solicitors' client account created Quistclose trusts in favour of plaintiffs
  2. 2 Whether Quistclose trusts existed between plaintiffs and the solicitors (2nd defendant) or only between plaintiffs and the company/1st defendant
  3. 3 Whether the 2nd defendant breached any trust by paying out funds on instructions of its client

Ratio Decidendi

Court found that Quistclose trusts existed between the plaintiffs and the company/1st defendant (funds were intended for share subscriptions) but no Quistclose trusts were created between the plaintiffs and the 2nd defendant; the 2nd defendant received funds as agent of its client without notice of a trust and paid out in good faith on client instructions; accordingly the 2nd defendant was not liable for breach of trust and was entitled to rely on the defence of change of position to the restitution claim, so plaintiffs' claims against the 2nd defendant were dismissed and costs awarded to the 2nd defendant.

Court Disposition

Plaintiffs' claims against 2nd defendant Tanner de Witt dismissed

Orders

  • Judgment for 2nd defendant Tanner de Witt; plaintiffs claims in DCCJ 3388/2005 and DCCJ 3389/2005 dismissed as against 2nd defendant
  • Costs nisi: plaintiffs to pay 2nd defendant's costs (including previously reserved costs) with counsel certificate; times for hearings where actions heard together apportioned equally