| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL COURT
COMMERCIAL LIST
S ECI 2021 00488
| GIOACCHINO DI NATALE (known as JACK DI NATALE) the Executor appointed under the will of the late KEVIN RICHARD McCROHAN | Plaintiff |
| v | |
| HARRY HATCH | Defendant |
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JUDGE: | Waller J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 5 August 2024, last submissions received 12 August 2024 |
DATE OF JUDGMENT: | 18 September 2024 |
CASE MAY BE CITED AS: | Di Natale v Hatch |
MEDIUM NEUTRAL CITATION: | [2024] VSC 575 |
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RESTITUTION – Money had and received – Funds advanced to the defendant for the purchase of shares to be registered in the plaintiff’s name – Restitutionary damages for failure of consideration – Defendant absent at trial.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr PW Collinson KC with Mr R Boadle | Kingdon Lawyers |
| No appearance for the Defendant |
HIS HONOUR:
A. INTRODUCTION
The defendant, Harry Hatch, was a friend of the late Kevin Richard McCrohan and occasionally gave Mr McCrohan recommendations in relation to share investments.
Between 14 August 2015 and 12 September 2017, Mr McCrohan paid Mr Hatch a total of $3,880,000 to purchase shares for Mr McCrohan in various companies.
Despite paying that amount, none of the shares were registered in Mr McCrohan’s name when they were purchased. Instead, the shares were registered in the name of Mr Hatch or Gasmere Pty Ltd (‘Gasmere’), a company controlled by Mr Hatch.
In 2022, after this proceeding had been commenced, Mr McCrohan died. The plaintiff, Gioacchino Di Natale, is the executor of the estate of the late Mr McCrohan. Mr Di Natale, on behalf of Mr McCrohan’s estate, seeks restitutionary damages of $3,573,126.44 plus interest.
For the reasons set out below, the plaintiff should be awarded restitutionary damages in the amount sought, together with interest.
B. THE ABSENCE OF THE DEFENDANT AT TRIAL
On 11 October 2023, Connock J fixed the proceeding for trial to commence on 5 August 2024.
On 28 June 2024, my chambers emailed both parties’ solicitors confirming that the trial was scheduled to commence on 5 August 2024.
On 19 July 2024, Woronczak JR granted leave to the defendant’s solicitors, Pointon Partners, to file and serve a notice of ceasing to act pursuant to r 20.03(1) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic).
On 1 August 2024, my chambers emailed the plaintiff’s solicitor and Mr Hatch, asking both parties to confirm their readiness to proceed with the trial.
The Court has received no communication from Mr Hatch since his solicitors ceased to act for him.
Mr Hatch was absent when the trial commenced on 5 August 2024. As both parties were given reasonable notice and no application was made to adjourn the trial, I determined that the trial should proceed.[1]
[1]See Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 49.02(1)(b).
Where a defendant does not attend a trial, the plaintiff must still establish their case by evidence in order to obtain judgment. The plaintiff is then…
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- AGLC
- Di Natale v Hatch [2024] VSC 575
- Case
- [2024] VSC 575
- Decision Date
CaseChat Overview and Summary
The court concluded that the failure of consideration for the funds advanced constituted a total failure of consideration, which justified restitution. The court was satisfied that Hatch had received the funds for the purpose of purchasing shares for Di Natale and that the shares were never registered in Di Natale's name. As a result, the court found that Di Natale was entitled to restitutionary damages for the money had and received. The court calculated the amount of restitutionary damages to be $3,573,126.44, along with interest from the commencement of the proceedings. Additionally, the court ordered that the restitution of $450,000 in respect of the Prenolica Funds was contingent on Di Natale transferring the Prenolica shares to Gasmere.
The court further determined that it would hear the plaintiff as to the appropriate form of order and as to costs. This decision ensures that Di Natale is compensated for the funds advanced to Hatch that were never used for the intended purpose. The court's decision provides clarity on the recovery of funds in cases of total failure of consideration, reinforcing the principles of restitutionary damages.
Orders
Orders of the court
60. For the reasons set out above, I have concluded that the plaintiff is entitled to be paid the sum of $3,573,126.44 as restitutionary damages for money had and received by the defendant to the use of the plaintiff.
61. Restitution of the sum of $450,000 in respect of the Prenolica Funds will be subject to the plaintiff transferring the Prenolica shares held by the plaintiff to Gasmere.
62. The plaintiff seeks interest on the sum of $3,573,126.44 from the commencement of the proceeding pursuant to s 60 of the Supreme Court Act 1986 (Vic). I will make an order to that effect.
63. I will hear the plaintiff as to the appropriate form of order and as to costs.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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