Campos v Lopes

[2021] QSC 42

SUPREME COURT OF QUEENSLAND

CITATION:

Campos v Lopes [2021] QSC 42

PARTIES:

MANUEL JOSE CAMPOS IN HIS CAPACITY AS TRUSTEE OF THE I’D RATHER BE SURFING TRUST

(applicant)

v
SERGIO LOPES

(respondent)

FILE NO/S:

8135 of 2020

DIVISION:

Trial

PROCEEDING:

Originating Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

10 March 2021

DELIVERED AT:

Brisbane

HEARING DATES:

28 October 2020
Applicant’s written closing submissions: 12 November 2020, Agreed chronology: 25 November 2020, Respondent’s written closing submissions: 2 December 2020

JUDGE:

Flanagan J

ORDER:

1. Pursuant to s 82(1) of the Trusts Act 1973 (Qld), the Court orders that 85,400 shares in Paradigm Biopharmaceuticals Ltd currently registered in the name of the respondent are vested in the applicant.

2.    I will hear the parties as to costs.

CATCHWORDS:

EQUITY – TRUSTS AND TRUSTEES – EXPRESS TRUSTS CONSTITUTED INTER VIVOS – DECLARATION OF TRUST – NECESSITY FOR INTENTION – OTHER MATTERS – where the applicant and respondent were co-directors – where shares were purchased in the name of the company – where shares were also purchased by the respondent in his own name – where the respondent purchased the shares using funds loaned from the company – where the respondent’s subsequent words and actions evidence an intention that the shares were held on trust for the applicant – whether that evidence is admissible as admissions contrary to interest

Trusts Act 1973 (Qld), s 82, s 90

Calverley v Green (1984) 155 CLR 242, applied
Charles Marshall Pty Ltd v Grimsley (1956) 95 CLR 353, applied
Kauter v Hilton (1953) 90 CLR 86, cited
Korda v Australian Executor Trustees (SA) Limited (2015) 255 CLR 62, cited
Re Tresdar Pty Ltd [2019] NSWSC 179, cited
Trustees of the Property of Cummins v Cummins (2006) 227 CLR 278, considered

COUNSEL:

M C Long for the applicant

C Templeton for the respondent

SOLICITORS:

HWL Ebsworth Lawyers for the applicant

Law Central Legal for the respondent

1. Mr Campos, the applicant, and Mr Lopes, the respondent, are both accountants.  On 3 May 2013 Odyssey (WA) Pty Ltd (Odyssey) was incorporated.  Odyssey carried on a business known as Odyssey Business Knowledge (OBK) which delivered accounting and bookkeeping services as well as tax and wealth planning services.[1]

   [1]T 1-6, lines 1-4.

2. From its incorporation until October 2019 Mr Campos and Mr Lopes were co‑directors of Odyssey and each held 50 per cent of the shares in the company.  Mr Campos held his shares in his capacity as trustee for the I’d Rather Be Surfing Trust and Mr Lopes held his shares in his capacity as trustee for the Lopes Family Trust. 

3. When Odyssey was incorporated both Mr Campos and Mr Lopes were resident in Western Australia.  In 2014 Mr Campos moved to Queensland.  OBK conducted business primarily in Western Australia and Queensland, with Mr Lopes being based in Western Australia and maintaining a predominantly Western Australia client base and Mr Campos being based in Queensland and maintaining a predominantly…