Jarrett v Perpetual Trustee Co Ltd - [2007] NSWSC 1231

No judgment structure available for this case.

Reported Decision:
64 ACSR 552

New South Wales

Supreme Court

CITATION: JARRETT & ORS v PERPETUAL TRUSTEE CO LIMITED [2007] NSWSC 1231

HEARING DATE(S): 12 to 16 February 2007; 24 May 2007

JUDGMENT DATE :
14 November 2007

JURISDICTION: Equity

JUDGMENT OF: Hall J at 1

DECISION: (1) On the findings made, I conclude that: (a) The disputed dividends claimed by the plaintiffs in the Second Further Amended Statement of Claim were validly determined and paid as dividends with the informed consent of the directors of RH & M, Elwood and UIGI. Those companies subsequently affirmed the dividends and ratified their payment by crediting them in the relevant accounts. The members of the respective companies, RAH No 1 and RAH No 2, also ratified the dividends and their payment. (b) Payment of the disputed dividends, the subject of the plaintiffs’ claim under the Second Amended Statement of Claim, was not made under a mistake as therein alleged. (c) On the above conclusions, the amounts paid by way of dividend to Mrs Jarrett during her lifetime are not recoverable by the plaintiffs by way of action at law for money had and received or in equity. (d) The disputed dividends having, on the findings made, being duly declared or determined and paid, there was no power in the plaintiffs companies to revoke or rescind them. (e) Accordingly, there is to be judgment entered in favour of the defendant in relation to such dividends. (2) On the findings made in respect of the cross-claim, I have concluded: (a) The evidence does not establish that a meeting of directors of RH & M took place on or after 10 December 2001 at which an interim dividend in the amount of $6,600,000 was declared or determined. (b) The evidence does not establish that a meeting of directors of Elwood occurred on or after 10 December 2001 at which an interim dividend in the amount of $500,000 (or for $496,096.31) was declared or determined. (c) That the monies repaid by Mr Milsom to Elwood on 12 November 2002 and to RH & M on 19 November 2002 were not repaid by him upon the basis of a mistaken assumption. (d) The evidence does not establish that the reimbursement of monies referred to in the preceding paragraph arose as a consequence of the “RH & M representations” and/or the “Elwood representations” relied upon by the cross-claimant in its Amended Statement of Cross-Claim. On that basis, no contraventions of s.52 of the Trade Practices Act or of s.42 of the Fair Trading Act arose as alleged in the cross-claim. (e) It follows from the above findings that the payments made by re-imbursement to RH & M and Elwood from the estate bank account with Westpac Banking Corporation were not payments of monies held on trust for the benefit of the estate as claimed by the cross-claimant on the cross-claim. (3) The parties are requested to lodge short minutes of order.

CATCHWORDS: Whether disputed dividends purportedly made to trustee companies during life of a director of the payer companies were validly declared – whether meetings of directors and members of companies held – whether such minutes of meetings as exited established that meetings were in fact held at which resolutions declaring dividends were allegedly passed – what constitutes a “meeting” – whether dividends purportedly declared that did not conform with the constitutions of the companies were paid – what constitutes “payment” of dividends – whether crediting of dividends in loan accounts constituted payment of dividends to deceased director – whether crediting loan accounts gave rise to a liability on the part of the payer companies – whether dividends and their payment ratified or confirmed loans granted by deceased director to company for amounts equal to disputed dividends paid by companies – deceased director ultimate beneficiary of the income of the group of companies – what amounts to payment of dividends – crediting by book entry intended to reflect payment of dividends – whether pre-existing cross liabilities between companies paying dividends and recipient necessary – whether there was agreement underlying mutuality of liabilities which the book entries were treated by all relevant parties as settling – doctrine of unanimous consent – cross-claim – whether as an issue of fact dividends had been declared or determined prior to director’s death for 2002 year – circumstantial evidence – drawing inferences – subsequent conduct of directors or omission to act.

LEGISLATION CITED: Companies Act 1867
Corporations Act 2001 (Cth)
Evidence Act 1995 (NSW)
Fair Trading Act 1987 (NSW)
Trade Practices Act 1974 (Cth)

CASES CITED: ABC v XIVth Commonwealth Games Limited (1988) 18 NSWLR 540
Aborel Nominees Pty Limited v Horsburgh (1986) 11 ACLR 138
Air Great Lakes Pty Limited v K S Easter (Holdings) Pty Limited [1985] 2 NSWLR 309
Australian Energy Limited v Lennard Oil NL (1986) 2 Qd R 216
Brodgen v Metropolitan Railway Co [1877] 2 AC 666 at 682
Challenge Charter Pty Limited v Curtain Bros (Qld) Pty Limited [2004] VSC 1
Cook’s Construction Pty Limited v Brown (2004) 49 ACSR 62
East Finchley Pty Limited v Federal Commissioner of Taxation (1989) 20 ATR 1623
Fabre v Arenales [1992] 27NSWLR 437
Federal Commissioner of Taxation v Steeves Agnew & Company (Victoria) Pty Limited (1951) 82 CLR 408
Francis v South Sydney District Rugby League Football Club Limited [2002] FCA 1306
Harkins v Butcher [2002] 55 NSWLR 558
Herrman v Simon (1990) 4 ACSR 81
Howard Smith & Co Limited v Varawa (1907) 5 CLR 68
Hussey v Horne-Payne (1879) 4 AC 311 at 316, 320
Integrated Computer Services Pty Limited v Digital Equipment Corp (Aust) Pty Limited (1988) 5 BPR 11,110
Jones v Dunkel (1959) 101 CLR 298
Kinsela v Russell Kinsela Pty Limited (in liq) (1986) 4 NSWLR 722
Minister for Immigration v Khawar (2002) 67 ALR 577
MYT Engineering Pty Limited v Malcon Pty Limited (1999) 162 ALR 441; 30 ACSR 705
Parras Holdings Pty Limited v Commonwealth Bank of Australia [1997] FCA 1107
Ormwave Pty Limited v Smith [2007] NSWCA 210
Re Associated Electronic Services Pty Limited (in liq) [1965] Qd R 36
Re Compaction Systems Pty Limited [1976] 2 NSWLR 477; (1976) 2 ACLR 135
Re Duomatic Ltd [1969] 2 Ch 365, 373
Re Harmony and Montague Tin & Coffee Mining Company (1873) 8 Ch App 407
Re Harry Simpson & Co Pty Limited (1964) 8 WN (NSW) 207
Re Harry Simpson & Co Pty Limited and Companies Act 1936 [1966] 2 NSWLR 445
Re Rural and Veterinary Requisites Pty Limited (in liq) (1978) 3 ACLR 597
Say-dee Pty Limited v Farah Constructions Pty Limited [2005] NSWCA 309
Sutherland (as liquidator of Sydney Appliances Pty Limited (in liq) v Robert Bosch (Aust) Pty Limited & Ors (2000) 33 ACSR 680
Swiss Screens (Australia) Pty Limited v Burgess (1987) 11 ACLR 756
Temples Wholesale Flower Supplies Pty Limited v Federal Commissioner of Taxation (1991) 29 FCR 93
Toyota Motors v Ken Morgan Motors [1994] 2 VR 106
Vroom BV v Foster’s Brewing Group Limited [1994] 2 VR 32
Willbros International Pty Limited v Emelco International Pty Limited [2000] NSWSC 156

PARTIES: JARRETT, Alicia Louise & ORS v PERPETUAL TRUSTEE CO LIMITED

FILE NUMBER(S): SC No 2145 of 2004

COUNSEL: P: J M Ireland QC/N Mansouridis
D: N C Hutley SC/B J Lee

SOLICITORS: P: McGirr James Hall & Associates
D: Tress Cox Lawyers

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HALL, J.

WEDNESDAY 14 NOVEMBER 2007

No. 2145 of 2004

ALICIA LOUISE JARRETT & ORS v. PERPETUAL TRUSTEE COMPANY LIMITED

HIS HONOUR:
Introduction

1 The plaintiffs claim relief in the nature of a declaration that certain disputed dividends were invalid and an order against the defendant, the Perpetual Trustee Company Limited, in its capacity as the present executor of the estate of the late Mrs Margaret Louise Jarrett (who will be referred to in this judgment as “Mrs Jarrett”) for the payment of monies in respect of the same.

2 Mrs Jarrett died on 10 February 2002. The defendant succeeded Mr Warren Milsom as the executor of the estate. Mr Milsom, over many years, played a central role in both advising Mrs Jarrett and in relation to the financial administration of the various companies with which she was associated as life tenant of certain settlement trusts discussed below.

3 The disputed dividends (30 in all over a 13 year period between the years 1988 and 2001) were claimed to have been declared and paid by the second plaintiff, R H & M Properties Pty Limited (RH & M), the third plaintiff, UIG Investments Pty Limited (UIGI) and the fourth plaintiff, Elwood Pty Limited (Elwood).

4 The dividend amounts in question in these proceedings are as follows:-

RH & M $12,195,861

UIGI $6,237,481

Elwood $4,536,170

5 The total amount in dispute is, accordingly, approximately $22.9 million (“the disputed dividends”). The plaintiffs’ case, in essence, is that the various steps taken with respect to RH & M, UIGI and Elwood and the trusts did not result in the valid declaration or payment of dividends in the abovementioned period. They, accordingly, claim that the deceased impermissibly drew on the funds of the above companies and she is obliged to reimburse the monies with interest thereon. The first plaintiff by these proceedings, accordingly in effect, seeks to augment or enhance her interests in remainder arising under the settlements that are referred to below by establishing invalidity, firstly, in the process by which corporate power was employed or implemented (or not) (the “declaration issue”) and, secondly, in the process purportedly employed to effect the distribution of dividend income to Mrs Jarrett (the “payment issue”).

6 The defendant instituted proceedings against the plaintiff companies by way of cross-claim, which were heard with the plaintiffs’ proceedings. In the Amended Statement of Cross-Claim, the Perpetual Trustee Company Limited, inter alia, seeks an order for the re-payment of monies totalling $7,100,000. It contends that dividends amounting to that figure were duly declared during the lifetime of the deceased for the 2001 year. Following Mrs Jarrett’s death, such monies were paid, but subsequently, in circumstances discussed below, they were reimbursed by her estate. The cross-claim is opposed by RH & M and Elwood. The central issue is whether dividends amounting to $7.1 million were validly declared by the companies before the death of the deceased or were otherwise payable by reason of a directors’ agreement conferring an entitlement upon Mrs Jarrett.

7 Mr J M Ireland QC, with Mr N Manousaridis of counsel appeared on behalf of the plaintiffs/cross-defendants. Mr N C Hutley SC, with Mr B J Lee of counsel appeared on behalf of the defendant/cross-claimant.

Facts

8 The plaintiff companies, RH & M, UIGI and Elwood, were formed by Mr Rupert Albert Geary Henderson, Mrs Jarrett’s father, as investment and trading companies. Mr Henderson died in 1986. Between 1948 and 1962, he caused a series of six discretionary trusts to be established. They were established by Deeds dated 12 April 1948, 9 December 1949, 3 October 1952, 1 September 1956, 16 September 1958 and 27 February 1962. They became known as the “Margaret Louise Jarrett Trusts”. On 30 June 1950, the late Mr Henderson caused a further discretionary trust to be established. It is known as the “Hazel Alice Margaret Henderson (Deceased) Settlement”. The shares in RH & M and UIGI were the assets of the abovementioned trusts.

9 For taxation purposes, the trusts were grouped into two tax-paying entities, namely, the MLJ Settlement Trust and the Hazel Henderson Settlement Trust. The MLJ Settlement Trust (or the “Margaret Louise Jarrett Trusts”) was the aggregation for tax paying purposes of five trusts established within the Henderson family. Copies of the relevant trust deeds, were in evidence: Exhibit A4 (pp.747 to 761). Mrs Jarrett was the sole beneficiary of the trusts by which she was entitled to all the income arising from the trusts’ shareholdings in RH & M, UIGI and Elwood during her lifetime. The relevant provision in the relevant settlements provided:-

“… NOW THIS DEED WITNESSETH that in consideration of the premises and of his natural love and affection for his said daughter, the settlor directs and it is hereby agreed as follows:-

(a) Until the said Margaret Louise Henderson attains the age of 21 years, the Trustees shall during that period accumulate the income arising from the Trust Fund and invest the same and the resultant income thereof in any of the investments hereby authorised in augmentation of the capital of the Trust Fund.

(b) Upon the said Margaret Louise Henderson attaining the age of 21 years, the Trustees shall stand possessed of the Trust Fund

UPON TRUST

to pay the whole of the income of the Trust Fund to the said Margaret Louise Henderson during her lifetime and after her death then as both capital and income

UPON TRUST

for all of the children or any … child of the said Margaret Louise Henderson … or being a female shall attain the age or previously marry if more than one in equal shares …”

10 The position throughout the relevant years was that Mr Jarrett had both the status and capacity as a life tenant of the settlement trusts and as well the role of director of the plaintiff companies. Upon Mrs Jarrett’s death, her daughter, Alicia, was a beneficiary as to both capital and income under the trusts upon her attaining the age of 21 or upon her prior marriage.

11 Mrs Jarrett swore an affidavit in Family Court proceedings on 5 February 1998. Paragraphs 1 to 5, 18 to 26, 76 to 88, 93 to 95, 107 to 109, 130, 140 and 168 of the affidavit were tendered and marked as Exhibit 1 in the present proceedings. Those paragraphs included relevant background and history. Mrs Jarrett stated in them that, on 23 December 1987, she caused RAH No 1 Pty Limited (“RAH No 1”) and RAH No 2 Pty Limited (“RAH No 2”) to be incorporated and took steps for the appointment of herself and her then husband, Robert, as directors and shareholders of those companies. Between 23 December 1987 and 28 August 1990, she appointed RAH No 1 and RAH No 2 to be the joint trustees of the Margaret Louise Jarrett Trusts, the Hazel Henderson Settlement and the Helene Henderson Settlement.

12 According to Mrs Jarrett’s affidavit, Mr Warren Milsom, chartered accountant, managed the Henderson Group of companies (which included RH & M, Elwood and RAH No 1 and RAH No 2) from 1998. She stated that Mr Milsom, for the majority of the relevant period of time a partner of Talbots, chartered accountants, met with her in person or by telephone about once a week. At those meetings, he consulted with her in relation to matters concerning the management of the Henderson Group of companies. She stated:-

“95. I have relied heavily upon the advice of my accountants and solicitors in providing instructions for the management of the Henderson Group.”

13 The corpus of the settlements was represented by shares held by the two trustee companies, RAH No 1 and RAH No 2 as joint trustees of the various settlements from 1988. RAH No 1 and RAH No 2 were appointed by deed dated 28 August 1988. They jointly owned the issued capital of both RH & M and UIGI on behalf of the various trusts. They have, since Mrs Jarrett’s death, retired and the companies have been deregistered. Mrs Jarrett remained a director of RAH No 1 and RAH No 2 from 26 August 1988 until her death, and, at all material times, was the sole shareholder of RAH No 1 and RAH No 2

14 From 1989 to her death on 10 February 2002, Mrs Jarrett was also the governing director of RH & M and a director in that period of UIGI and Elwood. These companies, at all material times, had two directors.

15 From 1989 until 14 September 1995, Mrs Jarrett and Mr Robert Jarrett were the only directors of RH & M, UIGI and Elwood. They were also in that period the directors of the trustee companies RAH No 1 and RAH No 2. From about 1997 until resignation after the death of Mrs Jarrett, the other director of RAH No 1 and RAH No 2 was Mr Milsom.

16 Mr and Mrs Jarrett separated in 1995. Their marriage was subsequently dissolved. On 14 September 1995, Mr Milsom was appointed as an additional director of all of the above companies with the deceased and her former husband. As company secretary and a director with day to day management responsibilities, he prepared the minutes of all meetings of the company. After 14 September 1995, Mr Jarrett played no part in the conduct or affairs of the companies. He formally ceased to be a director of them on 30 March 1998.

17 Upon the death of Mrs Jarrett, the first plaintiff, Alicia Jarrett became entitled to all the assets of the settlements including, in particular, the shares in RH & M and UIGI, which have since vested in her. The plaintiffs contended that the assets also included the retained income of the companies accumulated during the lifetime of her mother and which it is claimed were not validly distributed. That is a matter is relevant to an issue arising on the cross-claim.

18 The first plaintiff, Alicia Louise Jarrett, became a director of RH & M, UIGI and Elwood on 10 February 2002 and has remained a director of those companies.

19 Mr Milsom continued as a director of RH & M, UIGI and Elwood after the death of the deceased until his resignation on 30 June 2003.

20 In the period from 1989 until Mrs Jarrett’s death, Mr Milsom played an active and central role in advising her and the plaintiff companies. He also attended to the financial administration of the various companies with which the deceased was associated as life tenant of the settlements. It is part of the plaintiff’s case that the initiative for the declaration of interim dividends came from him.

21 The plaintiffs’ money claim is based upon the quantum of dividends purportedly credited to the loan accounts of the deceased in the books of RH & M and Elwood. In this respect, Mr Miller, chartered accountant and a partner in the firm Talbots, prepared summaries of the loan account of the deceased. Exhibit GJM-GG to his affidavit sworn on 18 August 2006 summarised Mrs Jarrett’s loan account for RH & M between 1991 and 2002. Exhibit GJM-HH to his affidavit summarised the account for Elwood for the same period. Based on those two exhibits, Mr Miller prepared a further analysis and calculations which formed the subject of his affidavit sworn on 12 February 2007. Exhibits GJM-JJ and GJM-KK to that affidavit in relation to the two companies highlight the dividends purportedly credited to each loan account and in each case deleting from the calculation of the running balance the amount of each of the purported dividends. On this basis, the running balances of each of the accounts include all items in Exhibits GJM-GG and GJM-HH, the exhibits to his affidavit sworn on 18 August 2006, except for the purported dividends. Mr Miller’s affidavit then provided “new calculations” for each loan account between 1991 and 2002.

22 UIGI declared dividends were credited to Elwood (which held the bank account), which, in turn, credited the UIGI dividends to a loan account of Mrs Jarrett.

23 The second plaintiff (RH & M) was a holding company with a number of investments including cash and listed shares.

24 The third plaintiff (UIGI) was a company with various business interests including newspapers. One of its subsidiaries was the fourth plaintiff, Elwood. Elwood was involved in a number of business enterprises at the initiative of the deceased. These included a nursery business in the Southern Highlands of New South Wales.

25 Mr Miller, chartered accountant, became involved in the affairs of the company in late 1989. He worked with Mr Milsom for a substantial period of time. Mr Miller stated in his affidavit sworn 24 June 2004 that in or about November 1989 Mr Milsom was appointed company secretary of the companies to which I have referred.

26 Following the death of Mrs Jarrett, Mr Miller became company secretary of RH & M and of UIGI.

27 In the period between 1989 and her death in 2002, Mrs Jarrett obtained substantial drawings from RH & M and Elwood. As earlier stated, the disputed dividends were said to have been paid by crediting the loan account of the trusts or the loan account of Mrs Jarrett in the books of RH & M or Elwood.

28 On occasions, dividends were paid by Mrs Jarrett granting a loan to Elwood for an amount equal to the dividend paid by RH & M and UIGI. (The effect of this was that, as at 30 June 2001, the company loan accounts recorded that RH & M, UIGI and Elwood were indebted to the Estate of the deceased in the amount of $9,169,281). The monies advanced also financed the acquisition by the deceased of assets including real property.

29 Payments for Mrs Jarrett’s expenses were made by the respective companies to the deceased directly and to third parties at her request, her loan accounts being drawn upon over the relevant period to meet her personal expenditure. RH & M also received income on property owned by Mrs Jarrett which was credited to her loan account.

30 The corporate trustees of the MLJ Settlement Trust and the Hazel Henderson Settlement Trust, at the time of the disputed dividends, (RAH No 1 and RAH No 2) were the sole shareholders of RH & M and UIGI. The shares in those companies were the only assets of substance belonging to the MLJ Settlement Trust and the Hazel Henderson Settlement Trust. Income from Elwood would form part of the income of the Trusts, it being a wholly owned subsidiary of UIGI.

The case as pleaded in the Further Amended Statement of Claim

31 As discussed below, the central focus of the plaintiff’s case was the contention that the purported dividends were not regularly made in accordance with the constitutions of RH & M and Elwood. Alternatively, if they were validly made, the plaintiffs contended there had been no valid or effective payment of dividends over the relevant years. Entries in the accounts of RH & M and Elwood were, it was argued, mere book entries and were not in law effective payments, the monies never moving out of RH & M and Elwood. The book entries, it was contended, were simply a “transition” of monies from retained profits which were intended to be the fund from which monies were to be paid.

32 The plaintiffs further submitted that there was not to be found an agreement by the shareholders of RH & M and Elwood, namely, RAH No 1 and RAH No 2 to the treatment of the “dividends” reflected by the book entries as discharging any dividend obligation (ie, assuming that relevant dividend declarations were validly made).

33 The plaintiffs relied upon the absence of any minutes of meetings of the trustee companies as evidencing the absence of an agreement by trustee companies with the dividend distribution procedure employed for the making of payments to or on behalf of Mrs Jarrett. Perpetual Trustee Company Limited, the defendant, however, as discussed below, relied upon statements of account, financial reports and, what was said to be, a complete set of income tax returns which it contended evidenced the unanimous agreement by all relevant persons to the methodology by which payment of the dividends was said to have been effected. The plaintiffs’ case, however, was that there had been a wrongful distribution of the funds of RH & M and Elwood to Mrs Jarrett instead of to the trustees RAH No 1 and RAH No 2. The plaintiffs, accordingly, maintained that there is a liability in the defendant to account for such monies. In this respect, the plaintiffs asserted payment by way of mistake in crediting the monies to Mrs Jarrett’s loan accounts as opposed to them being paid to the trusts.

34 In the Second Further Amended Statement of Claim which was filed in Court on 15 February 2007, the plaintiffs also pleaded duties allegedly owed by Mrs Jarrett, firstly, to the first plaintiff, Alicia Jarrett, (paragraph 33) and also as director of the second, third and fourth plaintiffs (paragraphs 34, 35 and 35A, respectively) of the Second Further Amended Statement of Claim.

35 As to the duty alleged to have been owed to the first plaintiff, paragraph 33 of the Amended Statement of Claim is in the following terms:-

“33. Between 1988 and her death in 2002, the deceased owed duties to the first plaintiff as entitled in remainder to the assets of the 1948, 1949, 1950, 1952, 1958 and the 1962 settlements:-

(a) to act impartially as between herself and the first plaintiff in dealing with those assets;

(c) to carry on the business of the settlements in a prudent manner and pay herself as life tenant thereof only those sums which might properly be distributed to her.”

36 The plaintiffs alleged that the duties owed by the deceased as director of the second, third and fourth plaintiffs were fiduciary duties owed to each of those plaintiffs, namely:-

(a) To exercise her powers for the purpose for which they were conferred and bona fide for the benefit of the company as a whole.

(b) Not to put herself in a position in which her duties to the company and her personal interests might conflict.

37 In paragraph 36 of the Second Further Amended Statement of Claim, the plaintiffs alleged that Mrs Jarrett was in breach of the duties pleaded in paragraphs 33, 34 and 35A in that she participated as director respectively of the second, third and fourth plaintiffs “… in purported declarations by the second, third and fourth plaintiffs”. Particulars in respect of the second, third and fourth plaintiffs of the disputed dividends were set out in the pleading.

38 In relation to the relevant dividends described in paragraphs 36A, 36B and 36C of the Second Further Amended Statement of Claim, respectively as the “RH & M purported dividends”, “UIGI purported dividends” and the “Elwood purported dividends”, the plaintiffs claimed that amounts equal to those particularised “… were credited in the books of the second/third and fourth plaintiffs to a loan account …” of each of those plaintiffs.

39 In paragraph 36D, the plaintiffs pleaded that, from time to time, “… amounts were paid by the second and fourth plaintiffs to or on behalf of the deceased and, after 10 February 2002, to or on behalf of the deceased’s estate, which amounts were debited to the loan accounts referred to in paragraphs 36A and 36B”.

40 The plaintiffs contended (paragraph 37 of the Second Further Amended Statement of Claim) that each of the purported dividends declarations identified were invalid.

41 In paragraph 37 of the Second Further Amended Statement of Claim, it was alleged that declarations were not “… declared or ratified in general meeting by the shareholders of the respective plaintiffs or were not recommended by the board of directors or both”.

42 The plaintiffs, accordingly, claim that Mrs Jarrett was liable to account to the plaintiffs in respect of the amounts set out in paragraph 36 of the Second Further Amended Statement of Claim.

43 As stated earlier, the plaintiffs also seek an order that the defendant, as executor of the estate, account to the plaintiffs for each of those amounts or, alternatively, the amount identified in paragraph [36] of the Second Further Amended Statement of Claim together with compound interest.

44 An order was also sought for all necessary further accounts and inquiries and, as well, an order for costs.

The evidence

45 In the plaintiffs’ case, six folders of documents were tendered entitled “Agreed tender bundle” numbered respectively 1 to 6. These became Exhibits A1 to A6. Exhibits A1 and A2, were the subject of frequent reference during the hearing of the proceedings. Exhibits A1, A2 and A3 were subtitled as follows:-

Exhibit A1 (Volume 1) – RH & M Properties Pty Limited (RH & M)

Exhibit A2 (Volume 2) – UIGI Investments Pty Limited (UIGI)

Exhibit A3 (Volume 3) – Elwood Pty Limited (Elwood)

46 These three volumes had also been exhibited to Mr Patterson’s affidavit in corresponding bundles as Exhibits SP-1, SP-2 and SP-3. Mr Patterson is a chartered accountant who was retained by the defendant for the purposes of the proceedings.

47 In general terms, the volumes included within them copies of accounting and other documents relating to the three abovementioned companies being documents that came into existence in the period 1989 and 2001. Exhibits A1, A2 and A3 included:-

• minutes of directors’ meetings;

• minutes of annual general meetings;

• profit and loss statements;

• balance sheets;

48 Exhibits A1 and A2 also included copies of income and expenditure accounts, balance sheets and income tax returns of the two trustees, RAH No 1 and RAH No 2, in respect of the two settlement trusts. Also included in those exhibits were copies of the income tax returns of Mrs Jarrett.

49 A “dividend summary” (marked as MFI 7A) was prepared. This dividend spreadsheet summary (in three sheets) summarised the evidence in Exhibits A1, A2 and A3 as supplemented by Exhibit 3 relevant to each of the three companies:-

(a) RH & M (page 1 of the summary), dividends numbered 1 to No 14 with respect of the financial years 1988 to 2001 (but not including the 1992 and 1993 financial years).

(b) UIGI (page 2 of the summary), dividends numbered 15 to No 24 with respect to the financial years 1988 to 1999 (but not including the 1998 financial year).

50 Note 2 of the summary, MFI 7A, records a fact established by the evidence:-

“All dividends subject to amended statement of claim have been paid out of either current year profits or a combination of current year profits and prior year retained profits $11,900, 570.”

51 The summary, MFI 7A, also contained an indication as to those years for which no minutes of directors’ meetings or minutes of annual general meetings or of minutes recording the adoption of accounts in annual general meetings in relation to the three companies were sighted by Mr Miller, who was called in the plaintiffs case. Detailed information in the summary is contained within subtitled columns for each company with page references to the tender bundles, volumes A1, A2 and A3.

52 The defendant relied upon the contemporaneous records within Exhibits A1, A2 and A3 as direct evidence of the facts relevant to both the declaration of dividends issues and the payment issue. It also relied upon those records as establishing a convention or practice which it claimed reflected a consensus in the nature of an agreement or arrangement whereby all relevant shareholders were said to have agreed from year to year upon declarations for the disputed dividends and that payment be effected by a process or mechanism whereby dividends would, with the agreement of the corporate trustees, be paid by crediting Mrs Jarrett’s loan accounts with the plaintiff companies, RH & M, UIGI and Elwood.

Relevant financial accounting records

53 There are some gaps in the available accounting records of RAH No 1, RAH No 2, RH & M, UIGI and Elwood over the relevant period. Additionally, the financial reports for each entity were not available for each of the relevant years.

54 Mr Simon Patterson, chartered accountant, to whom reference has already been made, (principal of the accounting firm, WHK Greenwoods), was retained by the defendant to undertake a comprehensive review of the documentation recording the movement of monies in relation to RAH No 1, RAH No 2, RH & M, UIGI, Elwood and the MLJ Settlement Trust and the Hazel Henderson Settlement Trust.

55 The purpose of the review was to determine the processes and the documentation associated with the payment of dividends by RH & M, UIGI and Elwood in the relevant period.

56 The absence of all financial reports and income tax returns for each entity over the relevant years meant that Mr Patterson was unable to provide a conclusive opinion on all aspects of the movement of dividend payments.

57 Mr Miller’s affidavits sworn on 24 June 2004, 2 August 2004 and 14 August 2006 established the following matters:-

(1) He, Mr Miller, assisted Mr Milsom in the 1989 financial year, that being the first year that Talbots carried out accounting work for RH & M, UIGI and Elwood.

(2) Talbots many years ago had acquired records from the firm, Neville Arthur Adcock, that had previously carried out accounting work for the group. These consisted of handwritten ledgers, journals and cashbook records for each of the companies. Thereafter, handwritten records were continued by Mr Milsom. In later years, computer records were created.

(a) RH & M Properties Pty Limited

(i) The system inherited from Neville Adcock was a “Kalamazoo” system which was continued for RH & M by Talbots until the year ended 30 June 1991.

(ii) Thereafter, Talbots adopted a computerised ledger system, “Solution 6 MAS”, to keep the records of RH & M together with a handwritten journal in a “Collins” accounting book. The Kalamazoo accounting system was continued for RH & M in the years 1992 to 1996 in respect of the cash book and journal records. Only ledger records were prepared in those years by computer.

(iii) The Kalamazoo records from late 1989 until the year ended 30 June 1996 in respect of RH & M have not been located, despite a search of records. On this basis, it was submitted that the conclusion may be drawn that the earlier Kalamazoo records of RH & M are no longer, in fact, in existence.

(iv) In respect of the years 1997 to 2001, manual journals were created except for the years 2000 and 2001. Journal entries for 2001 had been extracted.

(v) All computer generated accounting records of RH & M (ledger) commencing 1 July 1991 and journal records commencing 1 July 1996 have been retained by Talbots.

(b) UIG Investments Pty Limited

(i) Kalamazoo records had been maintained for the company which comprised cash book, ledger and journal entries up to the time Talbots first received instructions in 1989.

(ii) These records were continued by Talbots with the Kalamazoo system being utilised up to the year ended 30 June 2001. Handwritten cash book, ledger and journal records for 1989 to 2001 to UIGI were held by Talbots.

(c) Elwood Pty Limited

(i) Handwritten ledger, cashbook and journal records were obtained by Talbots for Elwood from Neville Adcock in late 1989.

(ii) Handwritten cash book and journal records of Elwood were maintained and continued by Talbots up to the 2001 year. Computerised ledgers were kept in respect of the period from 1 July 1991.

58 Mr Patterson’s evidence (affidavit sworn on 16 August 2006) established:-

• That generally speaking, dividends had been paid by way of crediting in the books of the payer (either RH & M, UIGI or Elwood) a sum in the loan accounts of the Trusts and in some instances a sum directly to the loan accounts of Mrs Jarrett.

• He did not sight evidence by way of minutes of meetings of directors and annual general meetings authorising and/or confirming the payment of the dividends.

• All of the dividends had been reported and included in the financial reports of the various paying entities.

• With the exception of dividends paid in 1988 (about which he had no information), the dividends recorded by the paying entities (RH & M, UIGI or Elwood) had been included as assessable income in the hands of respective shareholders (RAH No 1, RAH No 2 and UIGI) and subsequently in the hands of Mrs Jarrett as the beneficiary of the relevant trusts.

59 Mr Patterson additionally stated (affidavit sworn on 16 August 2006) that there were a number of instances where the accounting process for the payment of dividends appeared to involve the crediting of Mrs Jarrett’s loan accounts with dividend entitlements, notwithstanding that the shareholders in those instances were the two trusts. He added (paragraph 19):-

“… to an accountant reviewing the primary records (they were prepared in accordance with standard accounting practice), the inference I would draw is that the Trustees of the Trusts, by direction or otherwise, offset their dividend entitlement against the distributions to the beneficiaries such that the beneficiary became the creditor of the dividend paying company.”

60 Mr Patterson also concluded:-

“21. In summary, the financial records have been prepared on a consistent basis in that all of the dividends have been reported in the various Financial Reports of the companies and the dividends paid have been included as assessable income in the Trusts’ Income Tax Returns and the Trust beneficiaries’ tax returns for the years reviewed.”

61 Mr Patterson set out in paragraph 24 of this affidavit an analysis of the movement and accounting treatment of each of the dividends numbered 1 to 30 (see summary, MFI 7A).

The declaration of dividends issue

(a) The constitutional powers to declare and sanction payment of dividends

62 The relevant provisions of the Articles of Association of RH & M on the subject of dividends are contained in Articles 102, 103 and 105 of the Company’s Articles of Association. They provided:-

“102. All dividends shall be declared and paid according to the nominal value of each share and irrespective of the amounts paid or deemed to be paid up thereon and the Directors may from time to time declare interim dividends.

103. No dividend shall be payable except out the profits of the Company and no dividend shall carry interest as against the Company. The declaration of the Directors as to the amount of the net profit shall be conclusive and no larger dividend shall be declared than is recommended by the Directors but the Company in general meeting may declare a smaller dividend.

…

105. Any general meeting sanctioning a dividend may direct payment of same wholly or in part by the distribution of specific assets and, in particular, of fully or partially paid shares, debentures or debenture stock of the Company or of any other Company or in any one or more of such ways and when any difficulty arises in regard to the distribution the Directors may settle the same as they think expedient …”

63 In addition to the above provisions, Article 106 provided that notice of the declaration of any dividend, interim or otherwise, may be given to members by advertisement or otherwise as the directors determine.

64 In relation to UIGI, the relevant Articles in relation to “Dividends and Reserves” differed from those in the constitution of RH & M. The relevant Articles included, in particular, Articles 98, 99, 100, 101, 104 and 105 of the Articles of Association:-

“

Dividends and Reserves

98. The company in general meeting may declare dividends, but no dividend shall exceed the amount recommended by the Directors.

99. The Directors may, from time to time, pay to the members such interim dividends as appear to the Directors to be justified by the profits of the company.

100. No dividend shall be paid otherwise than out of profits or shall bear interest against the company.

101. The Directors may, before recommending any dividend, set aside out of the profits of the company such sums as they think proper as reserves which shall, at the discretion of the Directors, be applicable for any purpose to which the profits of the company may be properly applied …

102. …

103. …

104. Any general meeting declaring a dividend or bonus may direct payment of such dividend or bonus wholly or partly by the distribution of specific assets and, in particular, of paid-up shares, debentures or debenture stock of any other company or in any one or more of such ways and the Directors shall give effect to such resolution …”

65 It can be seen that, in the case of RH & M, the directors simply had power to declare interim dividends. Those may, or they may not, be sanctioned by a general meeting of the members of the company.

66 In relation to UIGI, the power was in the company in general meeting to declare dividends (Article 98) and, additionally, it was provided that the directors may “pay” to the members such interim dividends (Article 99).

67 In the case of Elwood provision was made in Article 114 of the company’s Articles of Association in the following terms:-

“114 (a) The company in general meeting may declare dividends but no dividend shall exceed the amount recommended by the Directors.

(b) The Directors also may, from time to time, pay to the members interim dividends as appear to the Directors to be justified by the profits of the Company.

(c) No dividend shall be paid otherwise than out of the profits and the declaration of the Directors as to the amount of the profits of the Company shall be conclusive.”

68 The plaintiffs contended that no dividends were validly declared in accordance with the requirements of the constitutions of the relevant plaintiff companies. They claimed, in this respect, that there were no meetings of directors wherein dividends were declared and no annual meetings at which any such dividends were approved. The plaintiffs accepted, in light of the provisions of s.251A of the Corporations Act 2001 (Cth), that they carried the onus of proof on such issues.

69 Based upon the ground relied upon, namely, that there were no valid payments of dividends, the plaintiffs claimed an entitlement to their recovery upon two bases:-

• The doctrine of mistake – that the payments by RH & M and Elwood from the loan accounts of the deceased were made under an incorrect assumption and hence by mistake.

• The payments were made without authority and were recoverable in a common law action for money had and received. In particular, the disputed declarations and payments, the plaintiffs contended, were not made with an authority given in accordance with the constitutions of the companies.

(b) The plaintiffs’ case on the dividends issue

70 The plaintiffs’ case distinguished between years for which there were minutes of annual general meetings of RH & M and Elwood and those for which there were no such minutes, although maintaining that even where minutes existed, the Court would not find them as evidencing actual meetings held. In so saying, the plaintiffs acknowledged the provisions of s.251A(6) of the Corporations Act 2001 (Cth) which provide that a minute recording resolutions of meetings of shareholders and directors and which is signed is evidence of the proceedings, resolution or declaration to which it relates, unless the contrary is proved.

71 It may be concluded upon the basis of Mr Miller’s evidence as well as other evidence that all available original minute books and Annual Financial Statements of each of RH & M and UIGI had been obtained for the purpose of these proceedings. Accordingly, the plaintiffs submitted that the Court could be satisfied that there are no “missing minutes” of the relevant companies (plaintiffs’ outline of final submissions, paragraph 36).

72 The evidence established that:-

• Mr Milsom acted as company secretary of RH & M and UIGI between 1989 and 2002 and as such he had the minute books of those companies within his control.

• Mr Milsom in that period also had possession of the books of accounts of those companies.

• Mr Miller joined the firm Talbots in 1983 and later became a partner (on 1 July 1994). He was familiar with the procedure for the preparation of accounts between 1989 and 2002 and was involved in their preparation.

• Mr Miller was not involved in the preparation of minutes of meetings of directors or of members of RH & M and UIGI or Elwood or of notices in respect of such meetings.

73 Mr Ireland QC, on behalf of the plaintiffs, relied upon appendices 1 and 2 to Mr Shannon’s affidavit sworn on 4 August 2004, wherein dividends not confirmed by minutes of annual general meetings amounted to $9,373,000 in the case of RH & M and $1,020,000 in the case of UIGI. If the Court rejected the plaintiffs’ case that all purported dividends were invalid, then the plaintiffs’ alternative case, it was contended, would lead to an outcome in line with Mr Shannon’s abovementioned calculations.

74 The plaintiffs’ case on the “declaration issue” is that the Court would conclude that there were no valid declarations made in respect of the dividends in question. Dividends purportedly made never assumed the character of dividends and, accordingly, the plaintiffs’ contended RH & M and Elwood never came under a liability to pay them. Accordingly, the crediting of the loan accounts of those companies it was said neither reflected nor created any liability by them to the deceased.

75 On Mr Miller’s analysis, the plaintiffs’ contention was that the Court would find that no directors’ meetings and no meetings of members of the companies RH & M, UIGI and Elwood were held between 1989 and the death of Mrs Jarrett on 10 February 2002. Meetings such as certain minutes of meetings prepared by Mr Milsom may suggest took place did not, it was argued, reflect the reality. In support, the plaintiffs relied upon the minutes of RH & M and UIGI in relation to directors’ meetings held in May and June of particular years. Such meetings, they submitted, did not occur. The minutes, they maintained, were produced in the September or October of particular years in connection with the finalisation of draft accounts, well after the balance date. Even if the Court was to conclude otherwise, the plaintiffs, nonetheless, argued it would, in any event, find that the constitutional requirements or criteria for the declaration of dividends by RH & M, UIGI and Elwood had not been met.

76 For those years in respect of which there are minutes of meetings, Mr Ireland relied upon what was termed “the annual cycle” of accounting in relation to the production of the group’s accounts and financial reports. It was submitted that this timing was important in evaluating whether or not dividends purportedly declared before the end of June in a given financial year could in fact be taken as evidencing the fact of a meeting having taken place before 30 June in each relevant year.

77 The annual process for the preparation of the accounts the plaintiffs contended involved the following:-

(a) The posting of the general ledger records from the company’s cash books prepared by Mr Milsom and from other records in his possession. This was done as a matter of routine each year generally between August and October, under Mr Milsom’s supervision. The cash books of RH & M and Elwood were used to create computerised general ledger records. Between approximately August and September each year, the general ledger entries were prepared for each company together with associated journal entries.

(b) It was customary for the auditors to carry out work in relation to the financial reports of the companies during October in a particular year.

78 Mr Ireland submitted that, having regard to this annual process, it was clear that the draft financial reports were given attention well after year end. He observed that one may speculate as to why amounts for dividends were effectively backdated to the end of June.

79 In this way, the plaintiffs challenged the legal effect that could attach to minutes of meetings, in particular those relating to the declaration of dividends:-

“(a) The purported minutes of general meetings of RH & M and UIGI where they do exist, do not constitute proof that such meetings were held or that the resolutions referred to therein were validly passed.” (Plaintiffs’ note concerning ‘minutes’ of general meeting

80 Mr Ireland, in this respect, in oral submissions, drew specific attention to the minutes of the annual general meeting of shareholders of RH & M said to have been held on 31 December 1990. They referred to a resolution that specified the dividend be confirmed. It recorded “$1,058,000 declared on 28 June 1990”.

81 Mr Ireland made two points. Firstly, there was no evidence of any delegation to those recorded as having attended the annual general meeting to represent the trusts. Secondly, the reference to the declaration by the directors on 28 June 1990 could not be taken as accurate having regard to the cycle of accounting work referred to above. The cycle supported the inference that the dividend for a particular year was determined after the completion of the financial year. In that respect, Mr Ireland submitted:-

“The result will be that the figure which is purportedly included in this example … $1,058,000 could not, we say, as a matter of logic have been envisaged as at 28 June 1990. So that what has happened in this case clearly enough is that an entry has been made just before the end of the previous financial year … There is no direct evidence about that.”

82 Accordingly, it was argued a minute of a meeting held in May (or usually late June of a financial year) which referred to an amount by way of a purported dividend could not in truth represent a decision made on the date that it bore. It followed, so it was contended, that the minute of the meeting could not qualify for the presumptive effect of a meeting having been held at which a declaration was made:-

“… our fundamental submission in this case is that neither the directors’ minutes … the purported minutes … typically in late June of each financial year … can be safely treated as duly made and made at the time that they purport to have been made. Therefore, the meetings which they purport to authenticate should not, … be treated as having occurred.”

83 The first year for which “minutes” exist is the year ended 30 June 1990. A report of directors of RH & M and its subsidiaries for that year bears the signature of the deceased and Mr Jarrett and records that dividends were paid or recommended during the financial year, being a franked interim dividend of $1,058,000 paid on 28 June 1990 (Exhibit A1 at p.49).

84 The “minutes” of the Annual General Meetings of the shareholders of RH & M purport to relate to a meeting on 31 December 1990 at which the deceased and her husband were said to be present and to which I have made reference above. The minutes of that Annual General Meeting (being part of Exhibit A1 at p.48) are reproduced below:-

“Minutes of the Annual General Meeting of the Shareholders of RH & M Properties Pty Limited held at 2 Clairvaux Road, Vaucluse on 31st December 1990.

PRESENT:	Mr R J Jarrett (Chairman) Mrs M L Jarrett
NOTICE OF MEETING:	All members entitled to vote being present, Notice of Meeting as required by the Companies Act 1981 was dispensed with.
MINUTES:	Minutes of the previous Annual General Meeting of the company, held 24th November 1989 were read, confirmed and signed.
ANNUAL ACCOUNTS:	The Report of the Directors and the Balance Sheet of the Company as at 30th June 1990 with the Report of the Auditor, together with the Profit and Loss Statement for the year ended 30th June 1990 were taken as read. *Resolved* that the Report of the Directors and the Balance Sheet of the Company as at 30th June 1990 with the Report of the Auditor, together with the Profit and Loss Statement for the year ended 30th June 1990 be and are hereby adopted.
DIVIDEND:	*Resolved* that the following dividend be confirmed: $1,058,000 declared on 28th June 1990.
RE-ELECTION OF DIRECTORS:	*Resolved* that M L Jarrett and R J Jarrett, who retire in accordance with the Articles of Association, be and are hereby re-elected Directors of the Company.
APPOINTMENT OF AUDITOR:	The Chairman tabled nomination of appointment of auditors. *Resolved* that Rowlands Chartered Accountants be appointed as auditors of the Company.
CONFIRMED CHAIRMAN”

85 In relation to the above, I note that:-

• The minutes of the Annual General Meeting referred to as having been held on 24 November 1989 have not been found.

86 The plaintiffs’ submissions, as earlier noted, was that by a process of inference, the Court ought conclude that “minutes” of meetings were constructed well after the date upon which the relevant meeting or meetings allegedly occurred and that it may be concluded that no meetings took place.

87 Mr Miller, in his affidavit sworn on 1 November 2006, gave evidence as to the preparation of company accounts and reports. He stated:-

“10. From 1989, an annual pattern developed with respect to the work done by Talbots in the preparation of annual accounts and financial reports necessary for the group of companies which included the corporate plaintiffs.

11. The annual process of preparation of the group’s accounts and financial reports generally commenced with the posting of the general ledger records from the companies’ cash books prepared by Mr Milsom and from other records in his possession. This was done by the staff of Talbots as a matter of routine each year, generally between August and October, under Mr Milsom’s supervision. The cash book records of RH & M and Elwood were used to create computerised general ledger records. UIGI had a manual general ledger only. From time to time I was involved in the preparation of the general ledgers to the extent of answering questions raised by staff of the firm and I was sometimes engaged by Mr Milsom in discussions about particular matters.

12. Between about August and September each year, the general ledger entries were prepared for each company, together with associated journal entries …”

88 In the same affidavit, Mr Miller stated that the procedure he described was also taken in relation to the accounts for the 2001 financial year commencing in about August 2001. He also described the procedure whereby draft accounts were prepared by Talbots for the 2001 financial year and presented to Mr Milsom for RH & M, UIGI and Elwood in about September 2001. Mr Milsom gave instructions in about September 2001 approving a dividend of $300,000 for the 2001 financial year in relation to RH & M. In consequence, a computer entry was made by way of journal entry, in the books of RH & M which debited the ledger account for retained earnings and credited the dividend to the loan account of Mrs Jarrett (Account No. 881).

89 Mr Miller identified the ledger entries (tender bundle, volume A1 at p.301) being a debit of $300,000 in dividends paid or payable and in volume A1 at p.302, a credit of $300,000 in Mrs Jarrett’s loan accounts. They were both dated 30 June 2001. However, the entries were made in about September 2001.

90 He stated that at about that time Talbots prepared and Mr Milsom signed a purported minute of a directors’ meeting held on 29 June 2001 as well as a financial report for the year ended 30 June 2001 dated 31 October 2001.

91 Mr Miller also stated that Mr Milsom signed a minute of a directors’ meeting of RH & M purportedly held on 30 August 2001 between himself and Mrs Jarrett and a minute of a directors’ meeting between himself and Mrs Jarrett purportedly held on 15 October 2001.

92 To his knowledge, Mr Miller observed, there was no annual general meeting of RH & M held on 13 November 2001 or otherwise in respect of the 2001 financial year. He said there were no minutes of a general meeting of RH & M to consider and approve the 2001 accounts of RH & M which were prepared by Talbots. He added that, so far as he was aware, Mr Milsom gave no instructions to Talbots to prepare minutes of such a meeting. He was aware at that time that Mrs Jarrett was ill. He had not seen her in the office of Talbots at any time between August 2001 and her death on 10 February 2002.

93 The plaintiffs’ submission was that the discussion by Mr Miller of the procedure for the 2001 accounts revealed that no attention was given to the question of dividends until after the close of that financial year. This, I note, is of particular relevance to the cross-claim.

94 The plaintiffs additionally contended that where there existed purported minutes of directors’ meetings of RH & M and UIGI, the Court should conclude that, at least up to 1995, they were brought into existence by Mr Milsom without reference initially to the deceased or her former husband and that after September 1995, it was Mr Milsom who took the initiative in drafting purported minutes of directors and shareholders and signed by him. It was further submitted that following 1995, so far as the documents are concerned, “… there is nothing to show even the knowledge of the deceased with respect to the existence of Mr Milsom’s purported meetings of directors and shareholders” (plaintiffs’ outline of final submissions, paragraph 62).

95 In their written submissions, the plaintiffs’ contention was formulated in the following terms:-

“63. As a matter of fact, the circumstances surrounding the creation of the purported ‘minutes’ do not provide evidence upon which the Court could conclude that they evidence a consensus of the relevant persons. There were three reasons for this conclusion:-

(a) The proper factual conclusion is that the minutes relating to ‘dividends’ were created at the sole initiative of Mr Milsom. There is absolutely no evidence of his previous communication with the deceased before he compiled them;

(b) In the period between 1995 and 1998, there was no contact with Mr Jarrett, who would have been a necessary party to any meeting to declare a ‘dividend’. Clearly as a matter of fact, he was not. Therefore, the ‘minutes’ made up by Mr Milsom did not reflect any actual communications between the relevant directors at the time.

(c) In cases where there are no minutes at all, no informal consensus was ever reached between the relevant parties. Mr Milsom decided in some cases to provide for ‘dividends’. In a sub-set of those cases, he decided to create minutes to reflect the necessary organic decisions of the company and to make good that situation.

(d) In cases where no minutes eventuated, there was absolutely no warrant for any informal consensus to be inferred.”

96 In relation to particular references to the declaration of dividends in directors’ reports, it was submitted for the plaintiffs that statements to the effect that a proposal for a dividend was intended to be placed before an annual general meeting had no probative force. Similarly it was contended that statements in annual returns as to the date of annual general meetings did not prove the fact that such meetings had, in fact, occurred.

(c) The defendant’s case on the dividends issue

97 Mr Hutley SC, on behalf of the defendant, disputed the significance which the plaintiffs attached to the absence of certain documents. Insofar as it may be concluded from the evidence that such records do not exist, in particular, minutes of particular directors’ meetings or annual general meetings, then the defendant relied upon “contemporaneous records” referring to the making of declarations of dividends in preceding years to establish the fact that dividends had been duly declared in those years. The spreadsheet summaries for RH & M, UIGI and Elwood, MFI 7A, which relate to the material contained in Exhibits A1 to A3, supplemented by Exhibit 3, identify the contemporaneous documents relied upon by the defendant.

Minutes of the AGM held on 14 December 1996, signed by Mr Milsom, as Chairman, recorded a resolution confirming the actions of directors in declaring a dividend of $500,000 on 20 August 1995 and that it be paid out of profits in respect of the 1996 year.

The Report of Directors in the names of M L Jarrett and W E Milsom, recorded that a class A fully franked dividend of $500,000 was paid on 20 August 1995.

The Statement of Directors in the names of M L Jarrett and W E Milsom confirmed the accuracy of the Profit and Loss Statement. That Statement recorded the “dividends provided for or paid” of $500,00 and that the accumulated profits were $7,319,586.09.

The dividend was declared as dividend income being paid $250,000 to each of the two settlement trusts.

The trusts declared the dividend income in their income tax returns.

Mrs Jarrett’s income tax return included the dividend income.

1997

There are no Minutes of Directors’ Meetings in relation to a dividend of $500,000.

There are no Minutes of an AGM of the company for the 1997 year.

The Report of the Directors, signed by Mrs Jarrett and Mr Milsom, dated 13 October 1997 recorded “the following dividends were paid or recommended during the financial year: a fully franked interim dividend of $500,000 was paid on 20 June 1997”.

The Statement of Directors signed by Mrs Jarrett and Mr Milsom dated 13 October 1997 recorded their opinion as to the accuracy of the Profit and Loss Statement.

The Profit and Loss Statement records “dividends provided for or paid” of $500,000 and that the retained profits at the end of the financial year as $8,033,110.37.

The Annual General Ledger recorded for the year ended 30 June 1997 “fully franked class C” dividend as paid to the two settlement trusts dividends of $250,000 respectively.

The dividends were declared as dividend income in the 1997 Financial Reports for the two settlement trusts having been received by the two trustee companies.

Income tax returns for the trusts included the dividend income.

Mrs Jarrett’s income tax return included the dividend income.

1998

Minutes of Directors’ Meeting held on 19 May 1998. Resolved “to confirm the action of directors in declaring a dividend of $1,000,000 on 19 May 1998”. The Minutes were signed by Mr Milsom as Chairman.

No minutes of AGM.

Report of Directors dated 10 October 1998 signed by Mrs Jarrett and Mr Milsom. The Report records, “the following dividends were paid or recommended during the financial year. A fully franked interim dividend of $1,000,000 was paid on 19 May 1998”.

The Statement of Directors dated 30 October 1998 signed by Mrs Jarrett and Mr Milsom recorded the opinion of the directors “that the Profit and Loss Statement gave a true and fair view of the company’s profit and loss for the financial year”.

The Profit and Loss Statement recorded “dividends provided for or paid” of $1,000,000 and retained profits of $8,033,110.37

The Annual General Ledger recorded “interim dividend to shareholders of $1,000,000”.

The dividend was paid $500,000 to each of the trustee companies in relation to the two settlement trusts.

The dividend of $1,000,000 was declared as dividend income in the 1998 Financial Reports of the two settlement trusts and in the income tax returns of both trusts.

Mrs Jarrett reported $996,420 in her personal income tax return.

1999

There are no Minutes of Directors’ Meetings in relation to a dividend of $5,384,000.

There are no minutes of an AGM of the company for the year ended 30 June 1999. However, Minutes of the AGM held on 31 October 1999 were noted as read and confirmed at the AGM held on 14 November 2000.

The Report of the Directors, signed by Mrs Jarrett and Mr Milsom, dated 15 October 1999 recorded “The following dividends were paid or recommended during the financial year: A fully franked dividend of $5,000,000 was paid on 31 December 1998. A fully franked dividend of $384,000 was paid on 30 June 1999.”

The Declaration by the Directors dated 15 October 1999 recorded the opinion of the directors as to the accuracy of the Profit and Loss statement.

The Profit and Loss Statement recorded “Dividends provided for or paid” of $5,384,000 and that the retained profits at the end of the financial year as $4,243,176.58.

The Annual General Ledger for the year ended 30 June 1999 records a credit to the “Loan – Margaret Louise Jarrett” account on 31 December 1998 of $5,000,000 and a credit to the “Loan – M L Jarrett Current” account on 30 June 1999 of $384,000.

The dividend of $5,384,000 received from RH & M was paid in the amount of $2,692,000 to each of the trustee companies respectively.

The dividend was declared as dividend income in the 1999 Financial Reports of the two settlement trusts and in the income tax returns for both trusts.

Mrs Jarrett reported $5,900,250 in her personal tax return for that year, being a net dividend of $5,384,000 from RH & M and a net dividend of $520,000 from UIGI.

2000

Minutes of Directors’ Meeting held on 30 June 2000. Resolved “to declare a dividend of $400,000… paid or credited to the shareholders before 30 June 2000.” It was further resolved that the dividend of $400,000 be franked 100%.

Minutes of the AGM held on 14 November 2000, signed by Mr Milsom, as Chairman, recorded a resolution confirming actions of directors in declaring a fully franked dividend of $400,000 on 30 June 2000.

The Report of the Directors 31 August 2000 is signed by Mrs Jarrett and Mr Milsom. The Report records “The following dividends were paid or recommended during the financial year: A fully franked dividend of $400,000 was paid on 30 June 2000.”

The Declaration by the Directors dated 31 August 2000, signed by Mrs Jarrett and Mr Milsom recorded the opinion of the directors as to the accuracy of the Profit and Loss statement.

The Profit and Loss Statement recorded “Dividends provided for or paid” of $400,000 and retained profits of $5,239,700.53.

The Annual General Ledger for the year ended 30 June 2000 records a credit to the “Loan – Margaret Louise Jarrett” account on 15 March 2000 of $400,000 and an entry confirming “Dividends paid or payable” of $400,000 on 15 March 2000.

The dividend of $400,000 received from RH & M was paid in the amount of $200,000 to each of the trustee companies respectively.

The dividend was declared as dividend income in the 2000 Financial Reports of the two settlement trusts and in the income tax returns for both trusts.

Mrs Jarrett reported $396,200 in her personal tax return for that year, being a net dividend of the amount of $400,000 from RH & M.

2001

Minutes of Directors’ Meeting held on 29 June 2001. Resolved “to declare a dividend of $300,000… paid or credited to the shareholders before 30 June 2001.” It was further resolved that the dividend of $300,000 be franked 100%.

There are no minutes of an AGM of the company for the year ended 30 June 2001. However, The Directors’ Meeting held on 30 August 2001 resolved “that the Secretary be instructed to call an AGM on 13 November 2001”.

The Report of the Directors 31 October 2001 is signed by Mr Milsom. The Report records “The following dividends were paid or recommended during the financial year: A fully franked dividend of $300,000 was paid on 29 June 2001.”

The Declaration by the Directors dated 31 October 2001, signed by Mr Milsom recorded the opinion of the directors as to the accuracy of the Profit and Loss statement.

The Statement of Financial Position for RH & M recorded retained profits of $6,568,326.04 and “Dividends paid or proposed” of $300,000 Fully Franked Class C dividends.

The Annual General Ledger for the year ended 30 June 2001 records “Dividends paid or payable” of $300,000 on 30 June 2001.

The dividend of $300,000 received from RH & M was paid in the amount of $150,000 to each of the trustee companies respectively.

The dividend was declared as dividend income in the 2000 Financial Reports of the two settlement trusts and in the income tax returns for both trusts.

Mrs Jarrett reported $295,400 in her personal tax return for that year, being a net dividend of $300,000 from RH & M.

UIGI INVESTMENTS PTY LIMITED

Minutes of Directors’ Meeting held on 13 April 1988, attended by Mrs Jarrett, Mr Jarrett, and Mr Adcock. Resolved “that a dividend of $813,393 be declared and credited to the shareholders forthwith.”

Minutes of the AGM held on 28 December 1988 recorded a resolution confirming actions of directors in declaring a dividend of $813,393 on 13 April 1988.

The 1988 Financial Report for UIGI has not been requested as the statement of claim has been amended.

The Profit and Loss Statement recorded “Dividends declared” of $813,393 and retained earnings of $503,647.

The Annual General Ledger for the year records a “Profit and Loss Appropriation… Dividend declared…” of $813,393.

The dividend of $813,393 received from UIGI was paid to the two trustee companies.

The 1988 Financial Report for the Settlement Trusts is not available, accordingly the income declared in the trusts and loan balances cannot be confirmed.

The 1988 Income Tax Return for Mrs Jarrett is not available, accordingly the income declared by her cannot be confirmed.

1989

Minutes of Directors’ Meeting held on 28 April 1989, attended by Mrs Jarrett and Mr Jarrett – resolved “that a dividend of $27,868 be declared and credited to the shareholders forthwith.” Further, Minutes of Directors’ Meeting held on 16 June 1989, attended by Mrs Jarrett, Mr Jarrett, and Mr Adcock – resolved “that a dividend of $1,797,000 be declared and credited to the shareholders on 19 June 1989.”

Minutes of the AGM held on 24 November 1989 recorded a resolution confirming actions of directors in declaring dividends of $27,868 on 28 April 1989 and $1,797,000 on 16 June 1989.

The Directors’ Report for UIGI dated 30 June 1989 recorded the abovementioned declared dividends.

The Profit and Loss Statement recorded “Dividends declared” of $1,824,868 and retained earnings of $470,749.

The Annual General Ledger for the year contains two entries for “Profit and Loss Appropriation… Dividend declared…” of $27,868 on 28 April 1989 and $1,797,000 on 19 June 1989.

The dividend of $1,824,868 received from UIGI was paid in the amount of $912,434 to each of the trustee companies respectively.

The dividend was declared as dividend income in the 1989 income tax returns for both trusts.

Mrs Jarrett and Hazel Henderson Trust distributions totalling $3,555,668 declared in personal tax return.

1990

Minutes of Directors’ Meeting held on 28 June 1990, attended by Mrs Jarrett, Mr Jarrett, and Mr Milsom – resolved “to declare a fully franked dividend of $1,079,220.” Further, Minutes of Directors’ Meeting held on 17 December 1990, attended by Mrs Jarrett and Mr Jarrett, recorded the Directors’ statement as to the accuracy of the Profit and Loss statement.

Minutes of the AGM held on 31 December 1990 recorded a resolution that the dividend of $1,079,220 be confirmed.

The Directors’ Report for UIGI recorded the abovementioned declared dividend.

The Profit and Loss Statement recorded “Interim dividend paid” of $1,078,370 and retained earnings of $470,750.

The Annual General Ledger for the year records “Profit and Loss Appropriation – fully franked dividend…” of $1,078,370 on 28 June 1990.

The dividend of $1,078,370 received from UIGI was paid in the amount of $539,185 to each of the trustee companies respectively.

The dividend was declared as dividend income in the 1990 income tax returns for both trusts.

Mrs Jarrett and Hazel Henderson Trust distributions totalling $3,609,608 declared in personal tax return.

1994

Minutes of Directors’ Meeting held on 20 June 1994, attended by Mrs Jarrett and Mr Jarrett – resolved “to declare a fully franked class A dividend of $500,000.” Further, Minutes of Directors’ Meeting held on 16 December 1994, attended by Mrs Jarrett and Mr Jarrett, recorded the Directors’ statement as to the accuracy of the Profit and Loss statement.

Minutes of the AGM held on 30 December 1994 recorded a resolution that the dividend of $500,000 be confirmed.

The Directors’ Report for UIGI recorded the abovementioned dividend.

The Profit and Loss Statement recorded “Dividend paid” of $500,000 and retained profits of $4,396,318.75.

The Annual General Ledger for the year records “Profit and Loss Appropriation – fully franked dividend…” of $500,000 on 30 June 1994.

The dividend of $500,000 received from UIGI was paid in the amount of $250,000 to each of the trustee companies respectively.

The dividend was declared as dividend income in the 1994 income tax returns for both trusts.

There were no trust incomes declared in Mrs Jarrett’s personal tax return. There was a dividend income declared of $1,020,334, consisting of $500,000 from UIGI and $500,000 from RH & M.

1995

Minutes of Directors’ Meeting held on 28 June 1995, attended by Mrs Jarrett, Mr Jarrett and Mr Milsom – resolved “to declare a interim dividend of $500,000.”

Minutes of the AGM held on 5 December 1995 recorded a resolution that the dividend of $500,000 be confirmed.

The Directors’ Report for UIGI recorded the abovementioned dividend.

The Profit and Loss Statement recorded “Dividend paid” of $500,000 and retained profits of $5,412,544.75.

The Annual General Ledger for the year records “Dividend paid…” of $500,000 on 30 June 1995.

The dividend of $500,000 received from UIGI was paid in the amount of $250,000 to each of the trustee companies respectively.

The dividend was declared as dividend income in the 1995 income tax returns for both trusts.

Mrs Jarrett reported $996,700 in her personal tax return for that year, being the total from RH & M and UIGI.

1996

Minutes of Directors’ Meeting held on 18 November 1996, attended by Mrs Jarrett and Mr Milsom records that “minutes of the previous meeting of directors, as signed by the Chairman, were confirmed”. However, there are no other Minutes of Directors’ Meeting resolving to declare a dividend for this year.

Minutes of the AGM held on 14 December 1996 recorded a resolution “to confirm the action of directors in declaring a dividend of $500,000 on 20 August 1995.”

The Directors’ Report for UIGI recorded the dividend of $500,000 that was paid on 20 August 1995.

The Profit and Loss Statement recorded “Dividend paid” of $500,000 and retained profits of $5,407,384.75.

The Annual General Ledger for the year records “Dividend paid…” of $500,000 on 20 August 1995.

The dividend of $500,000 received from UIGI was paid in the amount of $250,000 to each of the trustee companies respectively.

The dividend was declared as dividend income in the 1996 income tax returns for both trusts.

Mrs Jarrett disclosed $996,540 in her personal tax return for that year, being the total received from RH & M and UIGI.

1997

There are no Minutes of Directors’ Meeting for this year.

There are no Minutes of AGM for this year.

The Directors’ Report for UIGI dated 13 October 1997 recorded the dividend of $500,000 that was paid on 20 June 1997.

The Profit and Loss Statement recorded “Dividend paid” of $500,000 and retained profits of $5,401,589.75.

The Annual General Ledger for the year records “Dividend paid” of $500,000 on 30 June 1997.

The dividend of $500,000 received from UIGI was paid in the amount of $250,000 to each of the trustee companies respectively.

The dividend was declared as dividend income in the 1997 income tax returns for both trusts.

Mrs Jarrett reported $996,420 in her personal tax return for that year, being the total from RH & M and UIGI.

1999

There are no Minutes of Directors’ Meeting for this year.

There are no Minutes of AGM for this year.

The Directors’ Report for UIGI dated 15 October 1999 recorded the dividends of $300,000 paid on 31 December 1998 and $220,000 paid on 30 June 1999.

The Profit and Loss Statement recorded the total dividend paid of $520,000 and retained profits of $5,431,479.75.

The dividend of $520,000 received from UIGI was paid in the amount of $260,000 to each of the trustee companies respectively.

The dividend was declared as dividend income in the 1999 income tax returns for both trusts.

Mrs Jarrett reported $5,900,250 in her personal tax return for that year, being the total from RH & M and UIGI.

ELWOOD PTY LTD

Minutes of Directors’ Meeting held on 2 June 1989, attended by Mrs Jarrett, Mr Jarrett and Mr Adcock record that “the dividend of $1,397,800 be declared and credited to the shareholder on 5 June 1989”.

Minutes of the AGM held on 24 November 1989 recorded a resolution to confirm the abovementioned dividend.

The Directors’ Report for Elwood recorded the dividend of $1,397,800 that was declared on 2 June 1989.

The Profit and Loss Statement recorded dividend paid of $1,397,800 and retained profits of $914,556.

The dividend was paid to UIGI.

The dividend was declared as dividend income in the 1989 Financial Report of UIGI.

1990

Minutes of Directors’ Meeting held on 28 June 1990, attended by Mrs Jarrett, Mr Jarrett and Mr Milsom, records that it was resolved to declare a dividend of $878,250.

Minutes of the AGM held on 31 December 1990 recorded a resolution to confirm the abovementioned dividend.

The Directors’ Report for Elwood recorded the dividend of $878,250 that was declared on 28 June 1990.

The Profit and Loss Statement recorded dividend paid of $878,250 and retained profits of $1,028,581.

The dividend was paid to UIGI.

The dividend was recorded as received in UIGI’s financial statements for this year.

1995

There are no Minutes of Directors’ Meeting for this year.

There are no Minutes of AGM for this year.

The Directors’ Report for Elwood recorded the dividend of $540,000 that was declared on 28 June 1995.

The Profit and Loss Statement recorded dividend paid of $540,000 and retained profits of $476,262.05.

The Annual General Ledger for Elwood Pty Limited records a dividend paid to UIGI of $540,000 on 28 June 1995.

The dividend was declared as dividend income in the 1995 Financial Report of UIGI.

1996

Minutes of Directors’ Meeting held on 18 November 1996, attended by Mrs Jarrett and Mr Milsom, record that the minutes of the previous meeting of directors were confirmed. However, there is no document containing the Minutes of Directors’ Meeting that records the declaration of the dividend for this year.

Minutes of the AGM held on 14 December 1996 recorded a resolution to confirm the dividend of $500,000 declared on 20 August 1995.

The Directors’ Report for Elwood recorded the dividend of $500,000 that was “paid on 20 August 1995”

The Profit and Loss Statement recorded dividend paid of $500,000 and retained profits of $515,418.41.

The Annual General Ledger for Elwood Pty Limited for this year records a dividend paid to UIGI of $500,000.

The dividend was declared as dividend income in the 1996 Financial Report of UIGI.

1997

There are no Minutes of Directors’ Meeting for this year.

There are no Minutes of AGM for this year.

The Directors’ Report for Elwood recorded the dividend of $500,000 that was paid on 20 June 1997.

The Profit and Loss Statement recorded dividend paid of $500,000 and retained profits of $520,077.10.

The Annual General Ledger for Elwood Pty Limited recorded a dividend paid to UIGI of $500,000 on 20 June 1997.

The dividend was declared as dividend income in the 1995 Financial Report of UIGI.

1998

There are no Minutes of Directors’ Meeting for this year.

There are no Minutes of AGM for this year.

The Directors’ Report for Elwood dated 30 October 1998 recorded the dividend of $40,000 that was paid on 19 May 1998.

The Profit and Loss Statement recorded dividend paid of $40,000 and retained profits of $723,024.97.

The Annual General Ledger for Elwood Pty Limited recorded a dividend paid of $40,000.

The dividend was declared as dividend income in the 1998 Financial Report of UIGI.

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Citations

Jarrett v Perpetual Trustee Co Limited [2007] NSWSC 1231

Most Recent Citation

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CITATION:	JARRETT & ORS v PERPETUAL TRUSTEE CO LIMITED [2007] NSWSC 1231
HEARING DATE(S):	12 to 16 February 2007; 24 May 2007
JUDGMENT DATE :	14 November 2007
JURISDICTION:	Equity
JUDGMENT OF:	Hall J at 1
DECISION:	(1) On the findings made, I conclude that: (a) The disputed dividends claimed by the plaintiffs in the Second Further Amended Statement of Claim were validly determined and paid as dividends with the informed consent of the directors of RH & M, Elwood and UIGI. Those companies subsequently affirmed the dividends and ratified their payment by crediting them in the relevant accounts. The members of the respective companies, RAH No 1 and RAH No 2, also ratified the dividends and their payment. (b) Payment of the disputed dividends, the subject of the plaintiffs’ claim under the Second Amended Statement of Claim, was not made under a mistake as therein alleged. (c) On the above conclusions, the amounts paid by way of dividend to Mrs Jarrett during her lifetime are not recoverable by the plaintiffs by way of action at law for money had and received or in equity. (d) The disputed dividends having, on the findings made, being duly declared or determined and paid, there was no power in the plaintiffs companies to revoke or rescind them. (e) Accordingly, there is to be judgment entered in favour of the defendant in relation to such dividends. (2) On the findings made in respect of the cross-claim, I have concluded: (a) The evidence does not establish that a meeting of directors of RH & M took place on or after 10 December 2001 at which an interim dividend in the amount of $6,600,000 was declared or determined. (b) The evidence does not establish that a meeting of directors of Elwood occurred on or after 10 December 2001 at which an interim dividend in the amount of $500,000 (or for $496,096.31) was declared or determined. (c) That the monies repaid by Mr Milsom to Elwood on 12 November 2002 and to RH & M on 19 November 2002 were not repaid by him upon the basis of a mistaken assumption. (d) The evidence does not establish that the reimbursement of monies referred to in the preceding paragraph arose as a consequence of the “RH & M representations” and/or the “Elwood representations” relied upon by the cross-claimant in its Amended Statement of Cross-Claim. On that basis, no contraventions of s.52 of the Trade Practices Act or of s.42 of the Fair Trading Act arose as alleged in the cross-claim. (e) It follows from the above findings that the payments made by re-imbursement to RH & M and Elwood from the estate bank account with Westpac Banking Corporation were not payments of monies held on trust for the benefit of the estate as claimed by the cross-claimant on the cross-claim. (3) The parties are requested to lodge short minutes of order.
CATCHWORDS:	Whether disputed dividends purportedly made to trustee companies during life of a director of the payer companies were validly declared – whether meetings of directors and members of companies held – whether such minutes of meetings as exited established that meetings were in fact held at which resolutions declaring dividends were allegedly passed – what constitutes a “meeting” – whether dividends purportedly declared that did not conform with the constitutions of the companies were paid – what constitutes “payment” of dividends – whether crediting of dividends in loan accounts constituted payment of dividends to deceased director – whether crediting loan accounts gave rise to a liability on the part of the payer companies – whether dividends and their payment ratified or confirmed loans granted by deceased director to company for amounts equal to disputed dividends paid by companies – deceased director ultimate beneficiary of the income of the group of companies – what amounts to payment of dividends – crediting by book entry intended to reflect payment of dividends – whether pre-existing cross liabilities between companies paying dividends and recipient necessary – whether there was agreement underlying mutuality of liabilities which the book entries were treated by all relevant parties as settling – doctrine of unanimous consent – cross-claim – whether as an issue of fact dividends had been declared or determined prior to director’s death for 2002 year – circumstantial evidence – drawing inferences – subsequent conduct of directors or omission to act.
LEGISLATION CITED:	Companies Act 1867 Corporations Act 2001 (Cth) Evidence Act 1995 (NSW) Fair Trading Act 1987 (NSW) Trade Practices Act 1974 (Cth)
CASES CITED:	ABC v XIVth Commonwealth Games Limited (1988) 18 NSWLR 540 Aborel Nominees Pty Limited v Horsburgh (1986) 11 ACLR 138 Air Great Lakes Pty Limited v K S Easter (Holdings) Pty Limited [1985] 2 NSWLR 309 Australian Energy Limited v Lennard Oil NL (1986) 2 Qd R 216 Brodgen v Metropolitan Railway Co [1877] 2 AC 666 at 682 Challenge Charter Pty Limited v Curtain Bros (Qld) Pty Limited [2004] VSC 1 Cook’s Construction Pty Limited v Brown (2004) 49 ACSR 62 East Finchley Pty Limited v Federal Commissioner of Taxation (1989) 20 ATR 1623 Fabre v Arenales [1992] 27NSWLR 437 Federal Commissioner of Taxation v Steeves Agnew & Company (Victoria) Pty Limited (1951) 82 CLR 408 Francis v South Sydney District Rugby League Football Club Limited [2002] FCA 1306 Harkins v Butcher [2002] 55 NSWLR 558 Herrman v Simon (1990) 4 ACSR 81 Howard Smith & Co Limited v Varawa (1907) 5 CLR 68 Hussey v Horne-Payne (1879) 4 AC 311 at 316, 320 Integrated Computer Services Pty Limited v Digital Equipment Corp (Aust) Pty Limited (1988) 5 BPR 11,110 Jones v Dunkel (1959) 101 CLR 298 Kinsela v Russell Kinsela Pty Limited (in liq) (1986) 4 NSWLR 722 Minister for Immigration v Khawar (2002) 67 ALR 577 MYT Engineering Pty Limited v Malcon Pty Limited (1999) 162 ALR 441; 30 ACSR 705 Parras Holdings Pty Limited v Commonwealth Bank of Australia [1997] FCA 1107 Ormwave Pty Limited v Smith [2007] NSWCA 210 Re Associated Electronic Services Pty Limited (in liq) [1965] Qd R 36 Re Compaction Systems Pty Limited [1976] 2 NSWLR 477; (1976) 2 ACLR 135 Re Duomatic Ltd [1969] 2 Ch 365, 373 Re Harmony and Montague Tin & Coffee Mining Company (1873) 8 Ch App 407 Re Harry Simpson & Co Pty Limited (1964) 8 WN (NSW) 207 Re Harry Simpson & Co Pty Limited and Companies Act 1936 [1966] 2 NSWLR 445 Re Rural and Veterinary Requisites Pty Limited (in liq) (1978) 3 ACLR 597 Say-dee Pty Limited v Farah Constructions Pty Limited [2005] NSWCA 309 Sutherland (as liquidator of Sydney Appliances Pty Limited (in liq) v Robert Bosch (Aust) Pty Limited & Ors (2000) 33 ACSR 680 Swiss Screens (Australia) Pty Limited v Burgess (1987) 11 ACLR 756 Temples Wholesale Flower Supplies Pty Limited v Federal Commissioner of Taxation (1991) 29 FCR 93 Toyota Motors v Ken Morgan Motors [1994] 2 VR 106 Vroom BV v Foster’s Brewing Group Limited [1994] 2 VR 32 Willbros International Pty Limited v Emelco International Pty Limited [2000] NSWSC 156
PARTIES:	JARRETT, Alicia Louise & ORS v PERPETUAL TRUSTEE CO LIMITED
FILE NUMBER(S):	SC No 2145 of 2004
COUNSEL:	P: J M Ireland QC/N Mansouridis D: N C Hutley SC/B J Lee
SOLICITORS:	P: McGirr James Hall & Associates D: Tress Cox Lawyers