Glover v Blumer - [2008] ACTCA 1

GLOVER & ANOR v BLUMER & ANOR [2008]
ACTCA 1 (20 FEBRUARY 2008)

TRUST AND TRUSTEE – fiduciary relationship alleged by reason of contract – agreement by third party to act as agent for one of the parties – whether pleadings were sufficient in alleging that third party knowingly participated in dishonest and fraudulent design.
PRACTICE AND PROCEDURE – statement of claim struck out – sufficiency of pleadings – declaratory orders by consent that affected question of fiduciary relationship between principals – no identification in pleadings of breach of fiduciary duty – requirement for there to be knowing involvement in such breach.

Supreme Court Rules 1937 (ACT), O 23 r 28, O 29 r 4

Workers Compensation Regulation2002 (ACT)

Hospital Products Ltd v United States Surgical Corporation and Others (1985) 156 CLR 41
Breen v Williams (1996) 186 CLR 71
Glover and Sheils v Roche & Roche [2003] ACTSC 19 (4 April 2003)

Frame v Smith et al [1987] 42 DLR (4^th) 81
Barnes v Addy (1874) 9 LR Ch App 244

Consul Development Pty Ltd v DPC Estates Pty Ltd (1975) 132 CLR 373
Selangor United Rubber Estates Ltd v Cradock [No 3] [1968] 1 WLR 1555
Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 236 ALR 209

T G Youdan (Ed), Equity, Fiduciaries and Trusts, Carswell,1989

J D Heydon & M F Leeming, Jacobs’ Law of Trusts in Australia, 7^th Ed, Butterworths, 2006

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 10-2006
No. SC 175 of 2004

Judges: Gray P, Madgwick and Cowdroy JJ
Court of Appeal of the Australian Capital Territory
Date: 20 February 2008

IN THE SUPREME COURT OF THE       )          No. ACTCA 10-2006
  )          No. SC 175 of 2004
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:PETER RICHARD GLOVER
First Applicant

AND:PETER LENNOX SHEILS
Second Applicant

AND:NOORAINI BLUMER
First Respondent

AND:MARK BLUMER
Second Respondent

ORDER

Judges:  Gray P, Madgwick and Cowdroy JJ
Date:  20 February 2008
Place:  Canberra

THE COURT ORDERS THAT:

Leave to appeal be granted.

The appeal be dismissed with costs.

IN THE SUPREME COURT OF THE       )          No. ACTCA 10-2006
  )          No. SC 175 of 2004
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:PETER RICHARD GLOVER
First Applicant

AND:PETER LENNOX SHEILS
Second Applicant

AND:NOORAINI BLUMER
First Respondent

AND:MARK BLUMER
Second Respondent

Judges:  Gray P, Madgwick and Cowdroy JJ
Date:  20 February 2008
Place:  Canberra

REASONS FOR JUDGMENT

THE COURT

Peter Richard Glover and Peter Lennox Sheils (the applicants) seek leave to appeal from an order made by Connolly J on 29 March 2006 striking out the applicants’ second further amended statement of claim (statement of claim). At that time, the Supreme Court Rules 1937

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 Glover v Blumer

Details

AGLC: Glover v Blumer [2008] ACTCA 1
Case: [2008] ACTCA 1
Decision Date: 20 February 2008

CaseChat Overview and Summary

The appeal in *Glover v Blumer* concerned an allegation of dishonest and fraudulent design in relation to a fiduciary relationship. The appellant, Glover, sought to establish that the respondent, Blumer, had knowingly participated in a breach of fiduciary duty.

The central legal issues before the court were whether the pleadings sufficiently alleged that Blumer had knowingly participated in a dishonest and fraudulent design, and whether the statement of claim should be struck out on the grounds of insufficiency. The court also considered the effect of consent orders previously made, which declared a fiduciary relationship between the principals but did not identify a specific breach of that duty.

The court reasoned that to establish knowing participation in a dishonest and fraudulent design, the pleadings must identify a breach of fiduciary duty and then allege that the third party (Blumer) had knowledge of that breach. The existing pleadings failed to identify any specific breach of fiduciary duty by the principals, and therefore, could not establish Blumer's knowing involvement in such a breach. The court applied the principles that pleadings must clearly articulate the case to be met and that mere assertions of dishonest conduct are insufficient without supporting factual allegations.

Leave to appeal was granted, but the appeal was ultimately dismissed with costs.

Orders

Orders of the court

1. Leave to appeal be granted.

2. The appeal be dismissed with 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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