Marriner v Australian Super Developments Pty Ltd

Case [2016] VSCA 141


SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2015 0074

DAVID WELLESLEY MARRINER & ORS
(According to the attached Schedule)
Applicants
v
AUSTRALIAN SUPER DEVELOPMENTS PTY LTD Respondent

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JUDGES: TATE ACJ, KYROU and FERGUSON JJA
WHERE HELD: MELBOURNE
DATE OF HEARING: 16 May 2016
DATE OF JUDGMENT: 17 June 2016
MEDIUM NEUTRAL CITATION: [2016] VSCA 141
JUDGMENTS APPEALED FROM: Australian Super Developments Pty Ltd v Marriner [2014] VSC 464; Australian Super Developments Pty Ltd v Marriner [No 2] [2015] VSC 315 (Sloss J)

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TRUSTS – Breach of trust by solicitors transferring a client’s funds at direction of a third party – Whether third party knowingly induced or immediately procured breach – Principle in Eaves v Hickson (1861) 30 Beav 136; 54 ER 840 considered – Leave to appeal granted but appeal dismissed.

PRACTICE AND PROCEDURE – Email sent to original trial judge setting out parties’ agreed position on effect of a settlement payment made by another party on damages to be awarded to plaintiff – Issues remitted to another judge following successful appeal to Court of Appeal – Email not referred to or tendered at remitter trial – Whether, after publication of remitter judge’s reasons, defendants required leave to reopen their case in order to rely on email on quantum of damages – Dangers of informal communications with court discussed.

COSTS – Plaintiff ultimately succeeded in recovering small proportion of damages claimed in original trial – Whether issues-based costs order appropriate – Whether an invalid offer of compromise can be treated as a Calderbank offer – Whether defendants acted unreasonably in not accepting that offer – Costs orders affirmed.

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APPEARANCES: Counsel Solicitors
For the Applicants Mr P J Bick QC
with Mr R A Heath
Meerkin & Apel
For the Respondent Mr N J O’Bryan SC
with Mr A T Broadfoot
Holding Redlich

TABLE OF CONTENTS

Introduction and summary

Structure of judgment

PART A: GROUNDS 1, 2: MR MARRINER’S KNOWLEDGE

Facts relating to Grounds 1 and 2

Establishment of bank bond for $1.61 million and release of first two tranches

Release and disbursal of third tranche of Bond Monies

Mr Marriner’s instruction for disbursal of $80,000 from trust funds

Events after Mr Marriner’s instruction

Legal principles relevant to Ground 1

Sloss J’s findings relating to Ground 1

Parties’ submissions on Ground 1

Decision on Ground 1

Ground 2:  Weight to be given to Byrne J’s findings

Byrne J’s findings

Legal principles relevant to Ground 2

Sloss J’s findings relating to Ground 2

Parties’ submissions on Ground 2

Decision on Ground 2

PART B: GROUNDS 3, 4: EFFECT OF PAYMENT BY W&W

Facts relating to Grounds 3 and 4

Legal principles relevant to Grounds 3 and 4

Sloss J’s findings relating to Grounds 3 and 4

Parties’ submissions on Grounds 3 and 4

Decision on Grounds 3 and 4

PART C: GROUNDS 5, 6, 7: COSTS

Facts relating to Grounds 5, 6 and 7

Legal principles relevant to Grounds 5, 6 and 7

Sloss J’s findings…

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Details
AGLC
Marriner v Australian Super Developments Pty Ltd [2016] VSCA 141
Case
[2016] VSCA 141
Decision Date

CaseChat Overview and Summary

In the case of Marriner v Australian Super Developments Pty Ltd, the plaintiff sought to recover damages for a breach of trust by the defendant company's solicitors, who had transferred the plaintiff's funds at the direction of a third party. The case came before the court on several grounds, including the issue of whether the third party had knowingly induced or immediately procured the breach, a principle derived from Eaves v Hickson. The case was appealed, and leave to appeal was granted but the appeal was ultimately dismissed.

The legal issues before the court involved the interpretation of the principle in Eaves v Hickson and whether the third party's actions amounted to a breach of trust. The court also had to consider the effect of an email sent to the original trial judge, which outlined the parties' agreed position on the effect of a settlement payment made by another party on the damages to be awarded to the plaintiff. This email was not referred to or tendered at the remitter trial, and the court considered whether, after publication of the remitter judge’s reasons, the defendants were required to seek leave to reopen their case in order to rely on the email in relation to the quantum of damages. The court also discussed the dangers of informal communications with the court.

The court found that the third party's actions did not amount to a breach of trust under the principle in Eaves v Hickson. The court also held that the email was not admissible as evidence without leave to reopen the case, and that the defendants had acted unreasonably in not accepting an invalid offer of compromise, which could be treated as a Calderbank offer. The court affirmed the costs orders, which were issues-based, and held that the plaintiff was entitled to recover a small proportion of the damages claimed. The plaintiff ultimately succeeded in recovering a small proportion of the damages claimed in the original trial.

The final orders of the court included a dismissal of the appeal, a finding that the third party's actions did not amount to a breach of trust, a refusal to admit the email as evidence without leave to reopen the case, and a finding that the defendants had acted unreasonably in not accepting the Calderbank offer. The court also affirmed the issues-based costs order, which entitled the plaintiff to recover a small proportion of the damages claimed.

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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