Fluor Australia Pty Ltd v ASC Engineering Pty Ltd

Fluor Australia Pty Ltd brought an action against ASC Engineering Pty Ltd, seeking to enforce a trust in relation to monies owed under a sub-contract. The dispute was heard in the Supreme Court of Victoria. The primary issue for the court was whether a trust existed over the proceeds of the sub-contract, and if so, whether the statutory remedy for contribution under section 23B of the Wrongs Act 1958 (Vic) applied. The court was required to consider whether the sub-contractor's intention to create a trust was sufficiently expressed and whether this trust was consistent with the contractual arrangement. The second issue was whether the statutory remedy for contribution applied in this context.

The court held that there was no express trust over the sub-contract proceeds because the sub-contractor did not clearly express an intention to create a trust of a proprietary right in the performance of the contract. The court found that the trust, if it existed, would be inconsistent with the contractual and other arrangements. Regarding the statutory remedy for contribution, the court held that it was a remedy for a wrong and not a remedy for contribution between tortfeasors, and thus did not apply in this case. The court emphasised the importance of the clear expression of intent to create a trust and the consistency of such a trust with the contractual arrangements.

The court's reasoning led to the conclusion that Fluor Australia's claim for a trust over the sub-contract proceeds failed. Additionally, the statutory remedy for contribution did not apply, as it was not a remedy for contribution between tortfeasors. The orders of the court were that Fluor Australia take nothing by its action against ASC Engineering. The court dismissed Fluor Australia's claim in its entirety and ordered Fluor Australia to pay ASC Engineering's costs of the proceeding.