LINDON & ORS -v- CAMERON & ORS [1999] WASC 37

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[1999] WASC 37
Case No:	CIV:2604/1983	Heard:	18 MAY 1999
Coram:	MASTER BREDMEYER	Delivered:	21/05/99
No of pages:	8	Judgment Part:	1 of 1
Result:	Some particulars of breaches of trust struck out
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Parties:	OLGA MORRISON LINDON DOLINA MARY FEATHERBY NEONELA BARBARA CLARK ALEXANDRA JANE STANTON KIM GORDON STANTON CHARLES McKENZIE CAMERON EVAN THOMAS CAMERON CATHERINE ANNE CAMERON
Catchwords:	Common account Whether breaches of trust particularised by the plaintiffs fall within the scope of a common account
Legislation:	Nil
Case References:	Nil, Bell Group NV (In Liq) v Aspinall (1998) 19 WAR 561 Ledger v Petagna Nominees Pty Ltd ([1989] 1 WAR 300 Packer v Meagher [1984] 3 NSWLR 486 Re Bond Corporation Holding Ltd (1990) 1 WAR 465 Re Dawson [1966] 2 NSWR 211 Southern Cross Commodities Pty Ltd (In Liq) v Ewin [1987] ACLR 818

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : LINDON & ORS -v- CAMERON & ORS [1999] WASC 37 CORAM : MASTER BREDMEYER HEARD : 18 MAY 1999 DELIVERED : 21 MAY 1999 FILE NO/S : CIV 2604 of 1983 MATTER : The Will of JOHN EVANDER JAMES CAMERON (DEC)

and

The Will of MARY JANE ISABELLA CAMERON (DEC)

and

Order 58 r 2 and r 3

Rules of the Supreme Court 1971

BETWEEN : OLGA MORRISON LINDON

DOLINA MARY FEATHERBY

NEONELA BARBARA CLARK

Plaintiffs

AND

ALEXANDRA JANE STANTON

KIM GORDON STANTON

First Defendants

CHARLES McKENZIE CAMERON

EVAN THOMAS CAMERON

Second Defendants

(Page 2)

CATHERINE ANNE CAMERON

ALEXANDRA JANE STANTON

Third Defendants

ALEXANDRA JANE STANTON

KIM GORDON STANTON

Fourth Defendants

ALEXANDRA JANE STANTON

KIM GORDON STANTON

Fifth Defendants

Catchwords:

Common account - Whether breaches of trust particularised by the plaintiffs fall within the scope of a common account

Legislation:

Nil

Result:

Some particulars of breaches of trust struck out

Representation:

Counsel:

Plaintiffs : Mr B W Duckham

First Defendants : Mr M F Dwyer

Second Defendants : Mr M F Dwyer

Third Defendants : Mr M F Dwyer

Fourth Defendants : Mr M F Dwyer

Fifth Defendants : Mr M F Dwyer

Solicitors:

Plaintiffs : B W Duckham & Co

First Defendants : Corrs Chambers Westgarth

Second Defendants : Corrs Chambers Westgarth

(Page 3)

Third Defendants : Corrs Chambers Westgarth

Fourth Defendants : Corrs Chambers Westgarth

Fifth Defendants : Corrs Chambers Westgarth

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:
Bell Group NV (In Liq) v Aspinall (1998) 19 WAR 561
Ledger v Petagna Nominees Pty Ltd ([1989] 1 WAR 300
Packer v Meagher [1984] 3 NSWLR 486
Re Bond Corporation Holding Ltd (1990) 1 WAR 465
Re Dawson [1966] 2 NSWR 211
Southern Cross Commodities Pty Ltd (In Liq) v Ewin [1987] ACLR 818

(Page 4)

1 MASTER BREDMEYER: This is an application by the defendants under the inherent jurisdiction of the Court to strike out the particulars of breach of trust claimed by the plaintiffs dated 6 November 1998.…

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 Lindon v Cameron

Details

AGLC: Lindon v Cameron [1999] WASC 37
Case: [1999] WASC 37
Decision Date

CaseChat Overview and Summary

In the case of Lindon v Cameron, the plaintiffs sought to surcharge the executors of the estate of John Evander James Cameron for alleged breaches of trust. The defendants applied to strike out certain particulars of the breaches of trust as outside the scope of a common account ordered by the court. The court had to determine whether the particulars of breaches of trust alleged by the plaintiffs fell within the scope of a common account. The court considered whether the breaches of trust alleged by the plaintiffs could be charged on a common account or whether they required an account for wilful default. The court found that some of the particulars of breaches of trust were outside the scope of a common account and should be struck out. However, other particulars were found to be within the scope of a common account and could be pursued. The court struck out particulars 8(b) and 8(i) as being outside the scope of a common account. The court allowed the other particulars to stand, finding that they related to alleged breaches of trust that could be charged on a common account.

The court's reasoning was based on the principles of equity and the law relating to common accounts. A common account requires the accounting party to account for what they received, but it does not preclude the charging of breaches of trust in relation to moneys coming into their hands. The court found that some of the particulars of breaches of trust alleged by the plaintiffs were outside the scope of a common account because they related to moneys that the executors failed to receive. These particulars were struck out as being outside the order of the court and the rulings of the Master. Other particulars were found to be within the scope of a common account because they related to alleged breaches of trust in relation to moneys received by the executors. The court allowed these particulars to stand, finding that they could be pursued on a common account.

The outcome of the case was that some particulars of breaches of trust alleged by the plaintiffs were struck out as being outside the scope of a common account. However, other particulars were allowed to stand and could be pursued on a common account. The court did not rule on the issue of compound interest, leaving it to the Registrar to determine whether such a claim was legitimate. The court also noted that there was a degree of duplication between the allegations made by the plaintiffs in this case and a parallel action, and suggested that the parallel action could be stayed pending the taking of the account in this case.

Orders