WILLIAM THOMSON v. ROLAND JOHN JEANS AND ANOTHER

WILLIAM THOMSON v. ROLAND JOHN JEANS AND ANOTHER

Court found Quistclose trusts existed between each plaintiff and the 1st defendant/the company (funds intended for share subscription and not at immediate free disposal of company), but no Quistclose trusts were created between the plaintiffs and Tanner De Witt; Tanner De Witt received funds as agent for the company without notice of any restriction, paid funds out in good faith on client instructions and therefore was not liable for breach of trust; plaintiffs' restitution claims failed as to Tanner De Witt because the firm successfully invoked the change of position defence and ministerial receipt was unavailable in the factual matrix; alternatively, if Tanner De Witt had been a trustee...

Citation
WILLIAM THOMSON 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
DCCJ3388/2005
Procedural Posture
Civil Action (district Court) / Trial Judgment Delivered on 19 September 2014
Outcome
Judgment for 2nd defendant (Tanner De Witt): plaintiffs' claims against the 2nd defendant dismissed
Legal Topics
Quistclose Trust, Resulting Trust, Money Had and Received, Breach of Trust, Change of Position Defence, Ministerial Receipt, Solicitor Client Account Duties, Section 60 Trustee Ordinance Relief
Source Language
EN
Trusts and Equity Unjust Enrichment Company Law Professional Negligence/solicitors' Duties Civil Procedure Quistclose Trust Resulting Trust Money Had and Received +5 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 (district Court) / Trial Judgment Delivered on 19 September 2014

Legal Issues

  1. 1 Whether Quistclose trusts arose in respect of the plaintiffs' payments
  2. 2 Whether any trust arose as between the plaintiffs and the 2nd defendant (solicitors)
  3. 3 Whether the 2nd defendant was liable for breach of trust or for money had and received

Ratio Decidendi

Court found Quistclose trusts existed between each plaintiff and the 1st defendant/the company (funds intended for share subscription and not at immediate free disposal of company), but no Quistclose trusts were created between the plaintiffs and Tanner De Witt; Tanner De Witt received funds as agent for the company without notice of any restriction, paid funds out in good faith on client instructions and therefore was not liable for breach of trust; plaintiffs' restitution claims failed as to Tanner De Witt because the firm successfully invoked the change of position defence and ministerial receipt was unavailable in the factual matrix; alternatively, if Tanner De Witt had been a trustee...

Court Disposition

Judgment for 2nd defendant (Tanner De Witt): plaintiffs' claims against the 2nd defendant dismissed

Orders

  • Dismiss the plaintiffs' claims against the 2nd defendant in DCCJ 3388/2005 and DCCJ 3389/2005
  • Costs order nisi: plaintiffs to pay the 2nd defendant's costs (including previously reserved costs) with counsel's certificate