| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCI 2021 0123 |
| GP BUILDING HOLDINGS PTY LTD (ACN 145 944 163) | First Applicant |
| ROUBAL BEIRUTI | Second Applicant |
| v | |
| CLARE MAREE VOITIN | Respondent |
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| JUDGES: | Niall, Sifris and Walker JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 19 July 2022 |
| DATE OF JUDGMENT: | 30 September 2022 |
| MEDIUM NEUTRAL CITATION: | [2022] VSCA 210 |
| JUDGMENT APPEALED FROM: | [2021] VCC [1487] (Judge MacNamara) |
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TRUSTS – Knowing receipt – Solicitor misappropriated trust funds for private expenditure – Whether solicitor’s wife knowingly received misappropriated trust funds – Solicitor’s wife wilfully and recklessly failed to make reasonable inquiries about the source of trust funds – Solicitor’s wife ought to have known funds came from misuse of trust account – Leave to appeal granted – Appeal allowed.
Barnes v Addy (1874) LR 9 Ch App 244; Baden v Société Générale pour Favoriser le Développment du Commerce et de l’Industrie en France SA [1992] 4 All ER 161; Briginshaw v Briginshaw (1938) 60 CLR 336, considered.
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| Counsel | |||
| Applicants: | Mr D Farrands QC with Ms L Mills | ||
| Respondent: | Mr D Connors with Mr T Gorton | ||
Solicitors | |||
| Applicants: | SLF Lawyers | ||
| Respondent: | Rothwell Lawyers | ||
NIALL JA
SIFRIS JA
WALKER JA:
Introduction and summary.
Before he was made bankrupt, John Voitin was a solicitor in private practice. He induced one of his clients, Mr Roubal Beiruti, to invest with him, and for that purpose a company associated with Mr Beiruti[1] (Mr Beiruti and the company together, ‘the applicants’), deposited $3,245,000 into Mr Voitin’s trust account held in his firm’s name, Stanton Grant Legal (‘Stanton Grant’). Neither the promised returns nor the capital were returned to the applicants. The money was paid away, largely it seems to meet the private expenditure of Mr Voitin and his family. The applicants sued Mr Voitin in the Supreme Court and obtained summary judgment from Riordan J for the amount of $3,245,000 plus interest, together with some ancillary orders. The order made by Riordan J records that the transfers made by Mr Voitin out of the Stanton Grant trust account were made in breach of trust and in breach of Mr Voitin’s fiduciary duty.
[1]GP Building Holdings Pty Ltd (ACN 145 944 163) (‘GP Building’).
Apart from the recovery of some money pursuant to a mortgage, Mr Voitin’s bankruptcy left the applicants empty-handed. Subsequently, the applicants commenced a proceeding in the County Court against Mr Voitin’s wife, Clare Maree Voitin (‘the respondent’) alleging that she had knowingly received trust money and was thus liable in accordance with what is commonly called the first limb of Barnes v Addy.[2] It was alleged that the respondent had received, or received the benefit of, some $1,526,088.70.
[2][1874] UKLawRp Ch 20; (1874) LR 9 Ch App 244 (‘Barnes v Addy’).
The claim in the County Court presented two critical issues: had the respondent received trust money and, if she had, did she have the requisite knowledge that the money or its traceable proceeds were trust property and…
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- Case
- [2022] VSCA 210
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether Voitin had acted with the requisite knowledge when receiving the misappropriated funds. The central legal issue was whether Voitin's failure to make reasonable inquiries about the source of the funds amounted to knowledge or wilful blindness. The principles of knowing receipt, as established in Barnes v Addy and Baden v Société Générale pour Favoriser le Développment du Commerce et de l’Industrie en France SA, were applied to assess whether Voitin's conduct met the threshold for knowing receipt. Additionally, the Briginshaw v Briginshaw standard of proof was considered in evaluating the evidence.
The court found that Voitin had wilfully and recklessly failed to make reasonable inquiries about the source of the trust funds, and that she ought to have known the funds came from the misuse of the trust account. The court held that Voitin's conduct met the threshold for knowing receipt, and therefore she was liable for the misappropriated funds. The court granted leave to appeal and allowed the appeal, affirming the lower court's decision.
The final orders of the court were that Voitin was liable to repay the misappropriated trust funds to GP Building Holdings Pty Ltd. The court also granted leave to appeal and allowed the appeal, confirming that Voitin's failure to make reasonable inquiries about the source of the funds amounted to knowledge or wilful blindness.
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