Asset Risk Management v Hyndes

CITATION:	Asset Risk Management v Hyndes [1999] NSWCA 201
FILE NUMBER(S):	CA 40266/98
HEARING DATE(S):	17 March 1999
JUDGMENT DATE:	13 July 1999
PARTIES :	Asset Risk Management Limited v Mathew Jonathon Hyndes.
JUDGMENT OF:	Meagher JA at 1; Sheller JA at 11; Stein JA at 12

LOWER COURT JURISDICTION:	Supreme Court - Equity Division
LOWER COURT FILE NUMBER(S) :	ED 3689/97
LOWER COURT JUDICIAL OFFICER:	Young J

COUNSEL:	Appellant: R. McFarlan QC/A.S. Martin Respondent:I. Harrison SC/G. Grant
SOLICITORS:	Appellant: Clayton Utz Respondent: Pappas J.
CATCHWORDS:	Equity - account - employer/employee - abscence allegations of wrongdoing, breach of express term of contract, equitable duty; - allegation breach implied term abandoned.
CASES CITED:	Peninsular and Oriental Steam Navigation Co v Johnson [1937-1938] 60 CLR 189; Hospital Products Limited v United States Surgical Corporation (1984) 156 CLR 41.
DECISION:	Appeal allowed.

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 4022/98

MEAGHER JA
SHELLER JA
STEIN JA

TUESDAY 13 JULY 1999

ASSET RISK MANAGEMENT LIMITED v Mathew Jonathon HYNDES

JUDGEMENT

ASSET RISK MANAGEMENT LIMITED v Mathew Jonathon HYNDES

JUDGMENT

1 MEAGHER JA: This is an appeal from a judgment of Young J denying the appellant the remedy of an account against the respondent. The facts may be stated briefly. Indeed it would be difficult to do otherwise, as almost no evidence was tendered to the Court.
2 The appellant employed the respondent under an agreement called the Executive Services Agreement under which he would be General Manager, Asia. Despite his title he had a superior in Thailand, a Mr Gatland, who is now missing, probably murdered.
3 During the respondent’s service, two sums of money to which the appellant was entitled were transferred to an account in the respondent’s name with the Bangkok Bank Public Company Limited. Shortly afterward they were transferred from that account into another account in the joint names of the respondent and his fiance. Since that transfer the funds have gone astray, no one knows how or where. The amounts involved were 450,000Bahts and 28.4 million Deutschmarks. In Australian currency, the aggregate value of the two amounts is in the order of $46,000,000.
4 The appellant was concerned to know where its money had gone. The respondent replied that it had been dispersed in accordance with Mr Gatland’s directions. He also stated that in writing, not once but several times, that he would explain to the appellant exactly what had happened. But explain he never did. The appellant then sued him in Equity for an account. It lost.
5 Young J, in a careful judgement, gave a detailed history of the equitable action of account. He also pointed to the many features of this very curious case which seemed to favour the respondent: there was no allegation of legal wrongdoing, no allegation of breach of any express term of the contract; an initial allegation of breach of an implied term of the contract was abandoned. Nor was there any allegation of breach of any…