CBRE (C) Pty Limited v Audsley
[2015] FCA 1515
•27 November 2015
FEDERAL COURT OF AUSTRALIA
CBRE (C) Pty Limited v Audsley
[2015] FCA 1515
Citation: CBRE (C) Pty Limited v Audsley [2015] FCA 1515 Parties: CBRE (C) PTY LIMITED ACN 003 205 552 v JASON AUDSLEY File number: NSD 1231 of 2015 Judge: RARES J Date of judgment: 27 November 2015 Cases cited: Furs v Tomkies Ltd (1936) 54 CLR 583 Date of hearing: 27 November 2015 Place: Sydney Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 14 Counsel for the Applicant: Mr J Giles SC Solicitor for the Applicant: Norton Rose Fulbright Counsel for the Respondent: The Respondent did not appear
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1231 of 2015
BETWEEN: CBRE (C) PTY LIMITED ACN 003 205 552
ApplicantAND: JASON AUDSLEY
Respondent
JUDGE:
RARES J
DATE OF ORDER:
27 NOVEMBER 2015
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The respondent pay the applicant the sum of $485,869.62.
2.The respondent pay the applicant’s costs, including reserved costs of the interlocutory application filed on 25 November 2015.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1231 of 2015
BETWEEN: CBRE (C) PTY LIMITED ACN 003 205 552
ApplicantAND: JASON AUDSLEY
Respondent
JUDGE:
RARES J
DATE:
27 NOVEMBER 2015
PLACE:
SYDNEY
REASONS FOR JUDGMENT
(REVISED FROM THE TRANSCRIPT)
CBRE (C) Pty Limited employed Jason Audsley as a project manager in the period between 24 October 2011 and 17 November 2014. After Mr Audsley ceased to be employed, CBRE discovered that in the period between 31 August 2012 and 30 April 2014, he had prepared or caused to be prepared a number of invoices from NSW Citiwallz Pty Limited.
Procedural history
These proceedings commenced on 15 October 2015, when Gleeson J made ex parte freezing orders in relation to Mr Audsley’s assets. On 16 October 2015, Mr Audsley was served with the originating application, interlocutory application, statement of claim and the detailed affidavit of Enda Gerard Foley affirmed on 15 October 2015 that set out extensive evidence in support of the allegations in the statement of claim, to which I will shortly come. On 22 October 2015, Markovic J extended the freezing orders. On that occasion Mr Audsley appeared by counsel. Her Honour set down for hearing before me on 12 November 2015 the question of whether the freezing orders ought be continued or varied. Her Honour also ordered that Mr Audsley file and serve his defence by 19 November 2015.
On 12 November 2015, I inquired of counsel appearing for Mr Audsley what his defence was. Counsel responded that he was instructed only in respect of putting material to me in relation to the freezing orders’ impact on Mr Audsley’s wife and the couple’s joint finances, to the extent that Mrs Audsley was able to shed light on those matters. He informed me that his instructions did not extend beyond dealing with that matter and specifically did not extend to identifying anything about what Mr Audsley’s possible defence was. That was the reason why I required Mr Audsley to file an affidavit verifying any defence he might have, having regard to the strength of the prima facie case against him in Mr Foley’s affidavit.
On 12 November 2015, I extended the freezing orders until further order and ordered Mr Audsley to file and serve an affidavit verifying the material facts on which he relied in support of his defence at the time of filing that defence. I stood the matter over until today.
Mr Audsley has not taken any step to file and serve a defence or an affidavit verifying the material facts on which he relied in defence of CBRE’s claim.
On 24 November 2015, CBRE filed an interlocutory application seeking judgment against Mr Audsley in the amount of $485,869.62. I am satisfied that that amount comprises the total sum claimed by CBRE in its statement of claim, together with interest from the respective times of disbursement by CBRE of the various amounts that it claimed to have been paid away to Citiwallz by reason of the breaches of Mr Audsley’s obligations of loyalty and, in effect, in fraud of his employer, as alleged in the statement of claim, as I will explain below.
The factual circumstances
In his role as director of project management business, while employed by CBRE, Mr Audsley was responsible, on behalf of his employer and its clients, for managing fit outs of, and other alterations to, properties. That included him being involved in approving accounts submitted by contractors, that CBRE first paid and subsequently recovered from its clients for the work it was supervising.
In the course of his employment Mr Audsley caused CBRE to pay 12 invoices that Citiwallz issued, for work purportedly done on projects with which he was associated. Citiwallz addressed the invoices to a company related to CBRE that carried on the relevant clients’ fit out and project management services together with CBRE. In accordance with CBRE’s usual systems, the invoices were, in fact, paid by CBRE, as Mr Foley explained in his affidavit.
Citiwallz was deregistered at the times at which those invoices were approved or submitted by Mr Audsley for payment by CBRE. Mr Audsley was the only director and sole shareholder of Citiwallz at all relevant times before its deregistration and that position remained unchanged during the period over which Citiwallz issued the 12 invoices.
Consideration
The evidence in Mr Foley’s affidavit demonstrated that, among other things, the mobile telephone number printed at the foot of Citiwallz’s form of invoices was the mobile telephone number in Mr Audsley’s email address of his emails while he was employed by CBRE. No doubt that matter did not come to the attention of anyone within CBRE responsible for checking or approving the payments (apart from Mr Audsley). However, it became apparent when the matter was before me on 12 November 2015 when I was considering the evidence on the interlocutory application in relation to the extension of the freezing orders. The same evidence is now before me on this application.
I am satisfied by Mr Folley’s affidavit evidence and by the allegations in the statement of claim that CBRE is entitled to the relief it claimed in the amount that it paid out on those invoices, together with interest. In substance, the invoices represented that there was a genuine debt owed to Citiwallz for services that it had performed on behalf, or in respect, of the work being done for CBRE’s clients, which, relevantly, CBRE was obliged to pay Citiwallz, and that those representations were false and false to Mr Audsley’s knowledge at the time he made them. I am satisfied that CBRE acted on the faith of those representations and incurred the loss of each of the 12 invoiced sums when CBRE’s internal approvals process resulted in the payments being made to Citiwallz.
I am also satisfied that Mr Audsley acted in breach of his fiduciary duty not to make a profit from a dealing with his employer without having made full and frank disclosure of that dealing to, and receiving permission from, his employer: see Furs v Tomkies Ltd (1936) 54 CLR 583 at 599 per Rich, Dixon and Evatt JJ. But, Mr Audley made no such disclosure on the evidence.
On 24 November 2015, shortly after I had made the interlocutory application for default judgment returnable today, CBRE’s solicitor, Jacob Smit, served it on Mr Audsley’s solicitor, Christopher Saines, and gave Mr Saines notice that the interlocutory application had been set down for hearing today. Yesterday, 26 November 2015, Mr Audsley filed a notice of termination of Mr Saines’ retainer and set out his own address for service. In those circumstances, I am satisfied that Mr Audsley has had notice of, first, the hearing of the interlocutory application today and, because he was represented at all times until yesterday by his solicitor, orders made on previous occasions, including those for the filing of his defence and affidavit by 19 November 2015.
For these reasons, I am satisfied that I should make orders as sought by CBRE for judgment in the sum of $485,869.62, with costs.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. Associate:
Dated: 2 February 2016
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