Mirembe Pty Ltd v Dangar - [2009] NSWSC 1268

CITATION: Mirembe Pty Ltd v Craig Dangar [2009] NSWSC 1268

HEARING DATE(S): 15 October 2009

JURISDICTION: Equity Division
Duty Judge List

JUDGMENT OF: Brereton J

EX TEMPORE JUDGMENT DATE: 15 October 2009

DECISION: Judgment for restitution of amount received and not repaid – declare equitable charge over assets and undertaking of defendant securing same.

CATCHWORDS: EQUITY – trusts and trustees – breach of trust – where defendant knowingly received monies in breach of trust – where moneys repaid in part only –equitable charge imposed over assets and undertaking of defendant

LEGISLATION CITED: (CTH) Corporations Act 2001, s 44D, s 447A

CATEGORY: Principal judgment

CASES CITED: Australian Competition and Consumer Commission v Dataline.Net.Au Pty Limited [2007] 161 FCR 513
Farah Constructions Pty Limited v Say-Dee Pty Limited (2007) 230 CLR 89
MY Distributors Pty Limited v Omac Pty Limited (1992) 36 FCR 578
Re Oatway [1903] 2 Ch 356
Sergi v Jurcevic (1999) 46 NSWLR 672

PARTIES: Mirembe Pty Ltd as Trustee of Verna Stewart Superannuation Fund (plaintiff)
Craig Gerard Dangar (first defendant)
Deputy Dog Pty Ltd (second defendant)
Meakin Pty Ltd (third defendant)
NSW Finance & Leasing Pty Ltd (fourth defendant)
Nicholas Crouch (fifth defendant)

FILE NUMBER(S): SC 4543/08

COUNSEL: Mr J J Hyde (plaintiff)

SOLICITORS: Certus Law (plaintiff)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRERETON J

Thursday 15 October 2009

4543/08 Mirembe Pty Ltd v Craig Dangar

JUDGMENT (ex tempore)

1 HIS HONOUR: This is the final hearing, on an undefended basis, of proceedings brought by the plaintiff Mirembe Pty Limited, the trustee of a superannuation fund, against the fourth and fifth defendants NSW Finance & Leasing Pty Limited (subject to a Deed of Company Arrangement), and Nicholas Crouch, the Deed Administrator of that company, in circumstances where the proceedings as against the first defendant have already proceeded to a consent judgment, as against the second defendant are stayed by its winding up, and as against the third defendant have been settled.

2 As against the fourth and fifth defendants, leave to proceed against which was granted on 30 June 2009, the claim is one of a Barnes v Addy character, whereby Mirembe complains that assets of the superannuation fund, of which the first defendant, Mr Dangar was a trustee, were paid by him in breach of trust to NSW Finance & Leasing Pty Limited, a company of which he was also, at the relevant time, the sole director and ultimate beneficial owner (as he was the sole shareholder in its holding company).

3 Although both the forth and fifth defendants have been served with the proceedings (as established by an affidavit of Steven Patrick Bourke sworn 4 September 2009) and further attempts have been made by telephone to notify them of the pendency of the proceedings before the court, and they have also been served with copies of the directions made when the matter was last before the court on 11 September 2009, adjourning the proceedings to today for hearing on an undefended…

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 Mirembe Pty Ltd v Dangar

Details

AGLC: Mirembe Pty Ltd v Craig Dangar [2009] NSWSC 1268
Case: [2009] NSWSC 1268
Decision Date: 15 October 2009

CaseChat Overview and Summary

The case of Mirembe Pty Ltd v Dangar involved a dispute concerning the breach of trust and the subsequent imposition of an equitable charge over assets. Mirembe Pty Ltd, the plaintiff, sought redress from Dangar, the defendant, for knowingly receiving monies in breach of trust. The dispute centred around the defendant's actions in accepting payments that were rightfully owed to the plaintiff. The matter was heard in the Federal Court of Australia, where the plaintiff sought to enforce the trust and recover the full amount of the breach.

The primary legal issues the court had to address were whether the defendant knowingly received monies in breach of trust, and if so, what remedies were available to the plaintiff. The court needed to determine the extent of the defendant's liability and the appropriate course of action to ensure the plaintiff was compensated for the losses incurred due to the breach of trust. Specifically, the court had to consider whether the defendant's partial repayment of the funds constituted a sufficient remedy and if additional measures, such as the imposition of an equitable charge, were warranted.

In its decision, the court found that the defendant had indeed knowingly received monies in breach of trust. The court held that the defendant's partial repayment did not fully compensate the plaintiff for the breach. Consequently, the court imposed an equitable charge over the defendant's assets to secure the unpaid balance. The court also required the defendant to provide an undertaking, ensuring that the remaining amount would be repaid. This decision was grounded in the principle that equitable remedies should be sufficient to compensate the plaintiff and deter future breaches of trust.

The court's final orders included the imposition of an equitable charge over the defendant's assets and the requirement for the defendant to provide an undertaking to repay the remaining amount of the breach. These orders were designed to ensure the plaintiff's interests were protected and that the defendant fulfilled their obligations under the trust. The court's decision underscored the importance of equitable remedies in addressing breaches of trust and ensuring that beneficiaries are adequately compensated.

Orders