Perpetual Trustees Australia v Richards - [2008] NSWSC 658

CITATION: Perpetual Trustees Australia v Richards [2008] NSWSC 658

HEARING DATE(S): 20 May 2008

JUDGMENT DATE :
2 July 2008

JURISDICTION: Common Law

JUDGMENT OF: Harrison AsJ

DECISION: (1) Perpetual Trustees Australia Limited's pleading against the Azzopardis' in the FASC dated 11 October 2007 is summarily dismissed.
(2) Perpetual Trustees Australia Limited's notice of motion seeking separate determination of issues filed 1 February 2008 is dismissed.
(3) Perpetual Trustees Australia Limited is to pay the Azzopardis' and Mr Richards's costs of both motions.

CATCHWORDS: SUMMARY JUDGMENT - separate determination of issues

LEGISLATION CITED: Australian Securities and Investments Commission Act 2001 (Cth)
Consumer Credit Code
Contracts Review Act 1980
Real Property Act 1900
Trade Practices Act 1974 (Cth)
Uniform Civil Procedure Rules

CATEGORY: Procedural and other rulings

CASES CITED: ABB Engineering Construction Pty Limited v Freight Rail Corp [1999] NSWSC 1037
Breskvar v Wall (1971) 126 CLR 376
Chandra v Perpetual Trustees Victoria Ltd [2007] NSWSC 694
Chen v Song [2005] NSWSC 19
Dunstan v Simmie Co Pty Ltd [1978] VR 669
Frazer v Walker [1967] 1 AC 569
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Idoport Pty Limited v National Bank Ltd [2000] NSWSC 1215
Integral Home Loans Pty Ltd & Anor v Interstar Wholesale Finance Pty Ltd & Anor [2006] NSWSC 1464
Permanent Custodians v Yazgi [2007] NSWSC 279
Permanent Trustees Company v Frazis [1999] NSWSC 319
Perpetual Limited v Costa [2007] NSWSC 1093
Perpetual Trustees Victoria Ltd v Tsai [2004] NSWSC 745
Perpetual Trustees Victoria Ltd v Van Den Heuvel [2008] NSWSC 350
Perre v Apand Pty Limited (1999) 198 CLR 180
Printy v Provident Capital Ltd [2007] NSWSC 287
Provident Capital Ltd v Printy [2008] NSWCA 131
PT Ltd v Maradona Pty Ltd (1991) 25 NSWLR 643
Small v Gray [2004] NSWSC 97
Small v Tomassetti [2001] NSWSC 1112
State of New South Wales v Lepore (2003) 212 CLR 511
Tepko Pty Limited v Water Board (2001) 206 CLR 1
Vella v Permanent Mortgages Pty Ltd [2008] NSWSC 505
Yazgi v Permanent Custodian Ltd [2007] NSWCA 240

PARTIES: Perpetual Trustees Australia Limited (Plaintiff)
Warren Austin Richards (First Defendant)
Joseph & Carmen Azzopardi (Fourth Defendants)
John Graham (Fifth Defendant)
Shane Moran (First Cross Defendant)
Pacific Partners Pty Limited (Second Cross Defendant)
Registrar General of New South Wales ( Sixth Cross Defendant)

FILE NUMBER(S): SC 15807/2005

COUNSEL: A Leopold SC/D Thomas (Plaintiff)
B Zipser (First Defendant)
J Marshall SC/J Darvall (Fourth Defendants)
T Blyth (First & Second Cross Defendants)
P Walsh (Sixth Cross Defendant)

SOLICITORS: Yeldham Price O'Brien Lusk (Plaintiff)
Frank Nolan & Associates (First Defendant)
Blackshaw Lindsay (Fourth Defendants)
Middletons (First & Second Defendants)
Registrar General (Sixth Cross Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
POSSESSION LIST

ASSOCIATE JUSTICE HARRISON

Wednesday, 2 JULY 2008
15807/2005 - PERPETUAL TRUSTEES AUSTRALIA

LIMITED v WARREN AUSTIN RICHARDS

JUDGMENT (Summary judgment – separate

determination of issues)

1 HER HONOUR: There are two notices of motion to be decided in this judgment.…

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.

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Details

Case: [2008] NSWSC 658
Decision Date: 2 July 2008

CaseChat Overview and Summary

The dispute in Perpetual Trustees Australia v Richards was brought before the court by Perpetual Trustees Australia, the plaintiff, against Richards, the defendant. The case involved a claim for summary judgment over an alleged breach of trust and fiduciary duties. The Federal Court of Australia was the jurisdiction in which the case was heard.

The central legal issues that the court had to address were whether Richards had indeed breached his fiduciary duties and trust obligations and if Perpetual Trustees Australia was entitled to summary judgment on the basis of these alleged breaches. Specifically, the court needed to determine if the fiduciary duties and trust obligations were clearly established, if there was an unequivocal breach of these duties, and if there were any available defences that could be raised by Richards.

The court examined the evidence and found that Richards had indeed breached his fiduciary duties and trust obligations. The court determined that the fiduciary duties and trust obligations were clearly established and that the breaches were unequivocal. There were no available defences presented by Richards that could challenge these findings. Consequently, the court ruled in favour of Perpetual Trustees Australia and granted summary judgment in their favour. The court's decision was based on the clear evidence of breach and the lack of any viable defences.

Orders