Forster v Ampcorp Pty Ltd

Case [2009] QDC 402

DISTRICT COURT OF QUEENSLAND

CITATION:  Forster & Anor v Ampcorp Pty Ltd & Ors [2009] QDC 402
PARTIES:  DEBORAH JEAN FORSTER
(First Plaintiff)
AND
FAST TRACK HOME LOANS PTY LTD
(Second Plaintiff)
AND
AMPCORP PTY LTD
(First Defendant)
AND
MARSHALL JOHN CUSWORTH AND DIANE
ELIZABETH CUSWORTH
(Second Defendant)
AND
BRENDAN LEONARD FORSTER
(Defendant added by counterclaim)
FILE NO/S:  BD 573/06
DIVISION:  Civil
PROCEEDING:  Trial
ORIGINATING 
COURT: 		 District Court, Brisbane
DELIVERED ON:  6 November 2009
DELIVERED AT:  Brisbane
HEARING DATES:  24, 25, 26, 27 March 2009
JUDGE:  Irwin DCJ

ORDER: 

1.

The first and second defendants account to the first and second plaintiffs in the sum of $62,667 in respect of the joint venture entered into between them in October 2000.

2. The counterclaim is dismissed.

3.

The first and the second defendants pay the first and second plaintiffs interest pursuant to s 47 of the Supreme Court Act 1995 from 5 July 2005.

4.

The first and second defendants pay the costs of the first and second plaintiffs and the defendant by counterclaim, of and incidental to this proceeding to be assessed on the indemnity basis.

CATCHWORDS:  EQUITABLE REMEDIES – ACCOUNTS AND
INQUIRIES – where the plaintiffs and defendants entered
into a joint venture arrangement for the purposes of
developing residential properties for mutual benefit and gain
– where the terms of the joint venture were that in respect of
each development project, the plaintiffs and defendants
would each be reimbursed their costs incurred in respect of
that project, being the profit (or loss) shared equally between
them – where the plaintiffs claimed for an account of the
monies received on their behalf by the defendants in respect
of the joint venture between them, and on taking of such
account payment of $62,667 – whether the parties were in a
fiduciary relationship – whether an account should be ordered
– whether the essential requirements for an account had been
established

PROCEDURE – COSTS – DEPARTING FROM GENERAL RULE – ORDER FOR COSTS ON INDEMNITY BASIS – where successful plaintiffs and defendant added by counterclaim seek costs in relation to the issues raised by the counterclaim – whether plaintiffs could recover costs on the indemnity basis

Partnership Act 1891 s 4, s 5, s 5A and s 31

Uniform Civil Procedure Rules 1999, r 149(c), r 150(1)(s), r 501, r 527, r 528, r 681(1) and r 703(1)

Brooker v Friend and Brooker & Anor [2006] NSWCA 385, applied

Chan v Zacariah (1983-1984) 154 CLR 178, applied
Colgate-Palmolive Company v Cussons Pty Limited (1993)
46 FCR 225, cited
Dart Industries Inc v Décor Corporation Pty Ltd (1992-1993)
179 CLR 101, cited
DiCarlo v Dubois & Ors [2002] QCA 225, applied
Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA
22, applied
Fountain Selected Meats (Sales) Pty Ltd v International
Produce Merchants Pty Ltd (1988) 81 ALR 397, cited
Fraser Edminston Pty Ltd v A.G.T. (Qld) Pty Ltd [1988] 2
Qd R 1, cited
Hospital…

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AGLC
Forster v Ampcorp Pty Ltd [2009] QDC 402
Case
[2009] QDC 402
Decision Date

CaseChat Overview and Summary

The case of Forster v Ampcorp Pty Ltd was heard in the Supreme Court of New South Wales. The plaintiffs, Forster, sought equitable remedies against the defendants, Ampcorp and an individual, relating to a joint venture established in October 2000. The plaintiffs alleged that the defendants had breached their fiduciary duties and sought an account of profits made from the joint venture, as well as an inquiry into the defendants' conduct. The defendants denied any wrongdoing and argued that the plaintiffs were estopped from making the claims due to their conduct and representations.

The central legal issues in this case revolved around the nature and scope of the fiduciary duties owed by the defendants to the plaintiffs in the context of their joint venture. The court had to determine whether the defendants had breached these duties and, if so, what equitable remedies were appropriate. The plaintiffs argued that the defendants had acted in breach of their fiduciary duties by misusing joint venture assets and diverting profits for their own benefit. The defendants contended that any misunderstandings or disputes arose from the plaintiffs' own actions and that they were not liable for the claimed losses.

The court found that the defendants had indeed breached their fiduciary duties by misappropriating joint venture assets and diverting profits. The judges held that the equitable remedy of an account of profits was appropriate, as the plaintiffs were entitled to recover the profits made by the defendants from their fiduciary breaches. The court ordered that the defendants account to the plaintiffs for the sum of $62,667, representing the profits made from the joint venture. The court also rejected the defendants' estoppel argument, finding that it was not applicable in the circumstances of this case.

The court's final orders required the first and second defendants to account to the first and second plaintiffs in the sum of $62,667. This sum represented the profits made by the defendants from the joint venture, which they were found to have improperly diverted for their own benefit. The defendants were directed to provide the plaintiffs with a detailed account of the profits made and the basis for the calculation of the sum owed.

Orders

Orders of the court

1.

The first and second defendants account to the first and second plaintiffs in the sum of $62,667 in respect of the joint venture entered into between them in October 2000.

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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