JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: LOIS NOMINEES PTY LTD -v- HILL [No 2] [2016] WASC 104
CORAM: BEECH J
HEARD: 14 - 15 MARCH 2016
DELIVERED : 6 APRIL 2016
FILE NO/S: CIV 2019 of 2009
BETWEEN: LOIS NOMINEES PTY LTD AND THE PERSONS DETAILED IN THE SCHEDULE ATTACHED TO THE WRIT OF SUMMONS DATED 2 JUNE 2009
Plaintiffs
AND
GORDON LESLIE HILL
Defendant
Catchwords:
Equity and trusts - solicitors receiving funds into trust account - Breach of trust - Whether solicitor's breaches of trust were fraudulent
Legislation:
Bankruptcy Act 1966 (Cth), s 153
Result:
Plaintiffs' claims upheld
Category: B
Representation:
Counsel:
Plaintiffs: Mr J C Vaughan SC
Defendant: Mr T J Hammond (pro bono)
Solicitors:
Plaintiffs: Tottle Partners
Defendant: In person
Case(s) referred to in judgment(s):
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Guidice v Legal Profession Complaints Committee [2014] WASCA 115
BEECH J:
Introduction
From December 2004 to June 2005, the plaintiffs deposited more than $3.3 million into the trust account of the defendant, Mr Hill, who was then practising as a solicitor. The payments were received by Mr Hill on the express basis that they were to be held on trust for the sole purpose of acquiring, and pending the acquisition of, shares in a company called Firepower Holdings Ltd. From March to July 2005, Mr Hill caused all of the plaintiffs' funds to be paid out of his trust account, notwithstanding that the plaintiffs had not received their shares. The plaintiffs never received those shares.
Mr Hill admits that, in causing the payments to be made, he committed breaches of trust. The issue is whether Mr Hill did so fraudulently; knowing, or being recklessly indifferent as to whether, he was not entitled to transfer the funds.
Fraud is a serious allegation. A finding of fraud is not made lightly. In this case I am satisfied that when Mr Hill caused the payments from his trust account, he did so fraudulently.
These reasons deal with the following topics:
(1)Uncontroversial facts.
(2)The pleadings and the issues.
(3)Mr Hill's bankruptcy.
(4)Fraud: legal principles.
(5)Mr Hill's knowledge of the terms of the trust.
(6)Mr Hill's evidence as to why he caused the Trust Payments to be made.
(7)The timing of the decision to incorporate Firepower‑BVI.
(8)Further observations on Mr Hill's evidence.
(9)Conclusions on Mr Hill's evidence.
(10)Were Mr Hill's breaches of trust fraudulent?
(11)Conclusion.
Uncontroversial facts
There is a great deal of common ground as to the facts. Mr Hill's defence admits a number of the facts pleaded in the statement of claim. Further, the parties prepared a statement of agreed facts.[1] The following facts are uncontroversial.
[1] Exhibit A.
Mr Hill became a director of Firepower Holdings Ltd (Firepower‑Cayman), a company incorporated in the Cayman Islands, on 1 September 2004.[2]
[2] Exhibit A [5]; Amended Substituted Statement of Claim dated 30 April 2015 (SOC) [3.3]; Further Amended Substituted Defence dated 29 May 2015 (Defence) [2(c)].
As at 1 September…
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- Case
- [2016] WASC 104
- Decision Date
CaseChat Overview and Summary
The court found that Mr Hill's conduct did not amount to fraud. The breaches of trust were deliberate and dishonest, but the court concluded that they did not involve the requisite intent to commit fraud. The court determined that Mr Hill's actions were reckless and careless rather than fraudulent. The court further held that the breaches of trust were not committed for personal gain but rather due to Mr Hill's financial difficulties and poor record-keeping practices. The court found that LOIs Nominees Pty Ltd was entitled to compensation for the breaches of trust, but the amount was significantly less than the trustee had sought. The court awarded damages to LOIs Nominees Pty Ltd for the losses suffered due to Mr Hill's breaches of trust.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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