Markopoulus v Marco

In the case of Markopoulus v Marco, the primary issue before the court was the existence of an express trust and the potential breach of trust by Mr. Marco. The dispute arose from an investment agreement between Mr. Marco and Mrs. Markopoulus, the latter acting on behalf of her incapacitated husband, Mr. Markopoulus, who had suffered a catastrophic brain injury in 2012. The court had to determine whether the agreement between Mr. Marco and Mrs. Markopoulus manifested an intention to create a trust, and if so, whether Mr. Marco had breached that trust.

The legal issues focused on the interpretation of the Declaration of Trust executed in 2012 and its applicability to subsequent reinvestment of funds by Mrs. Markopoulus in 2013. The court examined the principles established in Byrnes v Kendle, which emphasize the objective manifestation of the intention to create a trust, rather than the subjective understanding of the parties. Mr. Marco argued that his subjective misunderstanding of the term 'trust' should be considered, but the court held that this was irrelevant to the objective intention of the parties as expressed in the written agreement.

The court found that the Declaration of Trust was a clear and unequivocal expression of an intention to create a trust, evidenced by the explicit terms and conditions set forth in the document. It further held that the subsequent reinvestment by Mrs. Markopoulus on the same terms as the original agreement also manifested an intention to create a trust, despite the absence of a new written agreement. The court ruled that Mr. Marco had breached his fiduciary duties by misappropriating the trust funds, and ordered an account to be taken to ascertain the extent of the breach.

In summary, the court granted summary judgment on the claim for debt, as Mr. Marco had admitted to owing the amount claimed. The court also held that Mr. Marco's defences, based on a subjective misunderstanding of the term 'trust' and the absence of a new written agreement, were without merit and did not raise any triable issues. The court ordered Mr. Marco to provide an account of his dealings with the trust funds and to compensate Mrs. Markopoulus for the losses incurred as a result of his breach of trust.