SUPREME COURT OF VICTORIA
CAUSES JURISDICTION
Not Restricted
No. 10354 of 1993
| HAYDN McCARTHY | Plaintiff |
| v. | |
| JOHN ALBERT WHEELER AND WONGAN HOTELS PTY. LTD. |
Defendants
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| JUDGE: | HEDIGAN, J. |
| WHERE HELD: | Melbourne |
| DATES OF HEARING: | 17-21, 24 and 25 August 1998 |
| DATE OF JUDGMENT: | 16 September 1998 |
| MEDIA NEUTRAL CITATION: | [1998] VSC 67 |
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FRAUD - Whether transfer of units in property trust fraudulently obtained - Claim made at common law and under Trade Practices Act and Fair Trading Act - Misleading and deceptive conduct.
CORPORATIONS LAW - Defendant procuring alteration of date on minute of alleged meeting prior to lodgment with A.S.C. - Effect of ss.1274(4B) and (4C) of Corporations Law - Whether defendant could rely on date other than that on the document when it was party procuring false dating.
CAVEAT - Claim for removal of - Whether unit holder in trust has sufficient proprietary interest in trust property to support caveat.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr. I.R. Jones | Meerkin & Apel |
| For the Defendant | Mr. D.J. Connell | Mr. K. Steele and Giammario |
HIS HONOUR:
The plaintiff Haydn Robert McCarthy (hereinafter called "Haydn" or McCarthy" or both) (for whom Mr. I. Jones of counsel appeared) sues John Albert Wheeler ("Wheeler") and Wongan Hotels Pty. Ltd. ("Wongan" or "the trustee" respectively) (for both of whom Mr. D. Connell of counsel appeared) seeking to have the purported transfer by McCarthy of units standing to his name in a Trust ("the River Street Property Trust" or "the Trust") declared to be void and of no effect on the grounds that the transfers were fraudulently obtained, alternatively a declaration that the purported entry of the transferee of the units (Wheeler) in the Register of Units in the Trust was of no effect because no valid meeting of the directors of the trustee was ever held to approve and consent to the transfer of the units from Haydn McCarthy to Wheeler.
I propose first to describe in a general way the background facts and circumstances which have given rise to the claim; second, to refer to the pleadings and third to articulate the relevant evidence and my findings of fact (including my evaluation of the witnesses) and finally the conclusions arrived at.
The plaintiff Haydn Robert McCarthy is now aged 24. He is the son of the now Kim Johnson who was by her first marriage married to one McCarthy. There were two children of that marriage: Nikki, a daughter, some three years older than Haydn, and Haydn. That marriage was dissolved. Subsequently, Kim married Adrian Lindsay Gallagher (hereinafter called "Adrian Gallagher" or "Adrian", to distinguish him from his brother Graham Gallagher and his nephew Andrew Gallagher, to both of whom reference will have to be made). Adrian Gallagher is not a party to this proceeding, although he may well have been added as a defendant. The reason that he was not made a party was because, as I find, the plaintiff's legal advisers were not aware prior to the…
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- Case
- [1998] VSC 67
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were whether the transfer of units in the property trust was obtained through fraudulent means, and if so, what remedies were available under the relevant statutes. The court also had to determine whether the defendant could rely on a date other than that which appeared on the document, given that the defendant was the party who procured the false dating. Additionally, the court considered whether the plaintiff, as a unit holder in the trust, had a sufficient proprietary interest to support the placement of a caveat over the trust property.
In addressing these issues, the court found that the transfer of units in the property trust was indeed the result of fraudulent conduct, and that the defendants had engaged in misleading and deceptive conduct. The court held that the defendant could not rely on a date other than that which appeared on the document, as they were the party who procured the false dating. Furthermore, the court determined that the plaintiff, as a unit holder in the trust, did have a sufficient proprietary interest in the trust property to support the placement of a caveat. The court granted the plaintiff's application for the removal of the caveat and awarded damages for the fraudulent conduct.
As a result of the court's findings, the final orders included the declaration that the transfer of units in the property trust was fraudulent, the removal of the caveat placed by the defendants, and an award of damages to the plaintiff for the misleading and deceptive conduct. The court also ordered the defendants to pay the plaintiff's costs associated with the proceedings.
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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