F & G NOMINEES PTY LTD -v- DIANE MARY COXON AND GORDON HOWARD ROBBINS as Executors of the Will of CYRIL HOWARD ROBBINS & ORS [2007] WASC 113

Reported Decision:	(2007) 34 WAR 55
Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2007] WASC 113
Case No:	CIV:2669/2004	Heard:	2 MARCH 2007
Coram:	LE MIERE J	Delivered:	28/05/07
No of pages:	17	Judgment Part:	1 of 1
Result:	Controller entitled to retain the sum of $500 000 Costs reserved
Category:	A
PDF Version

Parties:	F & G NOMINEES PTY LTD (ACN 008 834 517) DIANE MARY COXON AND GORDON HOWARD ROBBINS as Executors of the Will of CYRIL HOWARD ROBBINS CARROODA PTY LTD (ACN 008 785 573) HELEN KAYE BOYD LINDSAY BRIAN ROBBINS
Catchwords:	Equity Court-appointed controller of property sale proceeds Whether controller entitled to an indemnity against possible legal proceedings Whether indemnity secured by creation of equitable lien Whether controller entitled to retain funds to satisfy costs of legal disputes
Legislation:	Property Law Act 1969 (WA), s 126
Case References:	Australian Securities & Investments Commission; Re Lanepoint Enterprises Pty Ltd v Lanepoint Enterprises Pty Ltd [2006] FCA 1493 Cresvale Far East Ltd (in liq) v Cresvale Securities Ltd [2001] NSWSC 791; 39 ACSR 622 Hewett v Court (1983) 149 CLR 639 Nicobar Pty Ltd v Abrokiss (2003) 48 ACSR 259 Re Application of Central Commodities Services Pty Ltd [1984] 1 NSWLR 25 Re Universal Distributing Co Ltd (in liq) (1933) 48 CLR 171 Shirlaw v Taylor (1991) 31 FCR 222

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : F & G NOMINEES PTY LTD -v- DIANE MARY COXON AND GORDON HOWARD ROBBINS as Executors of the Will of CYRIL HOWARD ROBBINS & ORS [2007] WASC 113 CORAM : LE MIERE J HEARD : 2 MARCH 2007 DELIVERED : 28 MAY 2007 FILE NO/S : CIV 2669 of 2004 BETWEEN : F & G NOMINEES PTY LTD (ACN 008 834 517)

Plaintiff

AND

DIANE MARY COXON AND GORDON HOWARD ROBBINS as Executors of the Will of CYRIL HOWARD ROBBINS

First Defendants

CARROODA PTY LTD (ACN 008 785 573)

Second Defendant

HELEN KAYE BOYD

Third Defendant

LINDSAY BRIAN ROBBINS

Fourth Defendant

(Page 2)

Catchwords:

Equity - Court-appointed controller of property sale proceeds - Whether controller entitled to an indemnity against possible legal proceedings - Whether indemnity secured by creation of equitable lien - Whether controller entitled to retain funds to satisfy costs of legal disputes

Legislation:

Property Law Act 1969 (WA), s 126

Result:

Controller entitled to retain the sum of $500,000

Costs reserved

Category: A

Representation:

Counsel:

Plaintiff : Mr M N Solomon & Ms M Breisch

First Defendants : Mr T M Retallack

Second Defendant : No appearance

Third Defendant : Mr J A Thomson

Fourth Defendant : Mr J A Thomson

Solicitors:

Plaintiff : DLA Phillips Fox

First Defendants : Maxim Litigation Consultants

Second Defendant : No appearance

Third Defendant : Mallesons Stephen Jaques

Fourth Defendant : Mallesons Stephen Jaques

(Page 3)

Case(s) referred…

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.

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Details

Case: [2007] WASC 113
Decision Date: 28 MAY 2007

CaseChat Overview and Summary

The case of F & G Nominees Pty Ltd v Coxon involved a dispute between the plaintiff, F & G Nominees Pty Ltd, and the defendant, Coxon, who had been appointed as a controller over the proceeds from the sale of property. The primary issue before the court was whether Coxon, as the controller, was entitled to an indemnity against potential legal proceedings, and if such an indemnity could be secured through the creation of an equitable lien over the funds. Additionally, the court needed to determine whether Coxon was entitled to retain a portion of the sale proceeds to cover the costs associated with any legal disputes that might arise.

The legal issues at the heart of this case revolved around the scope of authority of a court-appointed controller over property sale proceeds. The court was required to assess whether Coxon's entitlement to an indemnity was justified, and if so, whether the creation of an equitable lien was a valid method to secure this indemnity. Furthermore, the court had to decide if Coxon was entitled to retain a specific sum of money from the proceeds to cover potential legal costs, and if this retention was proportionate and justified.

In delivering the judgment, the court found that Coxon, as the controller, was indeed entitled to an indemnity against possible legal proceedings. The court reasoned that this indemnity was necessary to protect Coxon from personal liability arising from his role as the controller. The court further held that the creation of an equitable lien was an appropriate mechanism to secure this indemnity. In terms of the retention of funds, the court determined that Coxon was entitled to retain a sum of $500,000 to cover the costs of potential legal disputes. The court found this amount to be reasonable and proportionate to the risks involved in the role of the controller.

The court reserved the matter of costs for further determination, indicating that the parties would need to address the issue of costs in a subsequent proceeding. The final orders of the court were that Coxon was entitled to retain $500,000 from the sale proceeds, with the matter of costs to be resolved at a later date.

Orders

Orders of the court

Controller entitled to retain the sum of $500

000

Costs reserved

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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