Legal Research
Cases
Dean v Antunes

Dean v Antunes

Case [2016] NSWSC 1845 21 December 2016

Trusts

Reflective Loss

Amendment to Statement of Claim

Trusts & Equity

No judgment structure available for this case.

Type to search within this case.

Supreme Court

New South Wales

Medium Neutral Citation: Dean v Antunes [2016] NSWSC 1845
Hearing dates: 17 and 24 November 2015
Decision date: 21 December 2016
Jurisdiction: Equity
Before: Lindsay J
Decision:
(1) A defendant’s application to strike out the plaintiff’s statement of claim dismissed.
(2) The plaintiff granted leave to amend his statement of claim, including leave to join parties in aid of his case against the defendant.
Catchwords:
EQUITY – Trusts, trustees and beneficiaries - Proceedings by beneficiary in right of trust against third party – Whether beneficiary can sue third party for common law damages that could be recovered by trustee if trustee willing and able to sue for them – Whether corporations law principle barring recovery of “reflective loss” by shareholder applies by analogy in law of trusts
PRACTICE AND PROCEDURE — Pleadings — Statement of claim – Amendment to statement of claim including leave for joinder of trustee of unit trusts and the plaintiff’s co-unitholders – Purpose to bind all interested persons and to avoid multiplicity of proceedings, not assertion of a new cause of action
Legislation Cited: Civil Procedure Act 2005 NSW
Corporations Act 2001 Cth
Limitation Act 1969 NSW
Professional Standards Act 1994 NSW
Uniform Civil Procedure Rules 2005 NSW
Cases Cited: Ballard v Multiplex [2008] NSWSC 1019; (2008) 68 ACSR 208
Carnie v Esanda Finance Corporation Ltd (1995) 182 CLR 398
Chawan v Euphoric Pty Ltd [2009] NSWSC 805; (2009) 73 ACSR 252
Chen v Karandonis [2002] NSWCA 412
Cook v Cook (1986) 162 CLR 376
Foss v Harbottle (1843) 2 Hare 461; 67 ER 189
Fried v National Australia Bank Ltd (2001) 111 FCR 322
General Steel Industries Inc. v Commissioner for Railways (NSW) (1964) 112 CLR 125
Gould v Vaggelas (1985) 157 CLR 215
Hodges v Waters (No. 2) [2015] FCA 264
Johnson v Gore Wood & Co [2002] 2 AC 1
Mercedes Holdings Pty Ltd v Waters (No. 2) [2010] FCA 472; (2010) 78 ACSR 118
Mercedes Holdings Pty Ltd v Waters (No. 3) [2011] FCA 236
Mobil Oil Australia Pty Ltd v Victoria (2002) 211 CLR 1 Parker-Tweedale v Dunbar Bank PLC (No. 1) [1991] Ch 12
Prudential Assurance Co Ltd v Newman Industries Ltd (No. 2) [1982] Ch 204
Sharah v Healey [1982] 2 NSWLR 223
Thomas v D'Arcy [2005] 1 Qd R 666; (2005) 52 ACSR 609
Vplus Holdings Pty Ltd v Bank of Western Australia Ltd [2012] NSWSC 1327; 91 ACSR 545
Wardley Australia Ltd v Western Australia (1992) 175 CLR 514
Webster v Sandersons Solicitors (A firm) [2009] EWCA Civ 830
Texts Cited:
Australian Corporation Law - Principles & Practice, vol 1 at [3.2A.0165]
Jacobs’ Law of Trusts in Australia JD Heydon and MJ Leeming (eds), (LexisNexis Butterworths, Australia, 8th ed, 2016), para [23-03]
Category: Consequential orders (other than Costs)
Parties: Plaintiff: Brian Arthur Dean
Defendant: Margaret Cavaco Antunes
Representation:
Counsel:
Plaintiff: N Kidd SC and JA Darvall
Defendant: PD Herzford
Solicitors:
Plaintiff: Geoffrey F Cohen
Defendant: Sparke Helmore

File…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Dean v Antunes

Details

AGLC: Dean v Antunes [2016] NSWSC 1845
Case: [2016] NSWSC 1845
Decision Date: 21 December 2016

CaseChat Overview and Summary

In the case of Dean v Antunes, the dispute involved a beneficiary of a unit trust seeking to recover common law damages from a third party, which could have been recovered by the trustee if the trustee had been willing and able to sue. The case was heard in the Federal Court of Australia, where the plaintiff, Dean, sought to amend his statement of claim to include the trustee of the unit trusts and the plaintiff’s co-unitholders, with the purpose of binding all interested parties and preventing a multiplicity of proceedings. The legal issues before the court were whether a beneficiary could sue a third party for common law damages that the trustee could recover if the trustee were willing and able to sue, and whether the principle of reflective loss under corporations law applies by analogy in the law of trusts.

The court examined the nature of the damages sought by the plaintiff, which were purely compensatory, and concluded that the principle of reflective loss, which applies to equitable compensation in the context of corporations law, did not apply to the present case. The court found that the damages sought were not equitable compensation but rather common law damages, and therefore the principle of reflective loss did not bar the plaintiff's claim. The court also noted that the plaintiff’s co-unitholders had an interest in the outcome of the proceedings, and that joining them as parties would avoid a multiplicity of proceedings. The court granted leave for the amendment of the statement of claim to include the trustee and the co-unitholders.

The Federal Court of Australia held that the plaintiff could sue the third party for the common law damages that the trustee could recover if the trustee were willing and able to sue. The court found that the principle of reflective loss did not apply to the present case, as the damages sought were compensatory rather than equitable compensation. The court also found that joining the trustee and the plaintiff’s co-unitholders as parties would avoid a multiplicity of proceedings and was in the interests of justice. The court ordered that the plaintiff’s statement of claim be amended to include the trustee and the co-unitholders as parties.

Orders