Pethybridge v Gillard

[2022] NSWSC 10

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Pethybridge v Gillard & Anor [2022] NSWSC 10

Hearing dates:

11 November 2021

Date of orders:

18 January 2022

Decision date:

18 January 2022

Jurisdiction:

Equity - Applications List

Before:

Slattery J

Decision:

Summary judgment granted. Declarations made that the first defendant held the subject securities on trust for the plaintiff and acted in breach of trust and that the second defendant is liable under the first and second limbs of Barnes v Addy. Equitable compensation ordered.

Catchwords:

CIVIL PROCEDURE – Interlocutory orders – Ex parte – application for summary judgment under Uniform Civil Procedure Rules 2005, r 13.1 – where plaintiff brings proceedings against the first and second defendants in March 2021 by Statement of Claim – where the first and second defendants have not filed a defence and have not taken an active part in the proceedings – whether summary judgment should be granted.

EQUITY – Fiduciary duties – Breach – Rule in Barnes v Addy – knowing receipt of trust property – where the plaintiff entrusted certain publicly listed securities to the first and second defendants to be held on his behalf – whether the first and second defendants held the securities on a common intention trust for the plaintiff – where by the actions of the first defendant, the second defendant disposed of the shares without the plaintiff’s knowledge or consent – whether in breach of trust – what liability of the second defendant for breach of trust in the first defendant for knowing involvement in the first defendant’s breach of trust – what is the measure of equitable compensation payable by the first and second defendants to the plaintiff.

Legislation Cited:

Corporations Act 2001 (Cth), s 671B

Evidence Act1995, s 140(2)(c)

Uniform Civil Procedure Rules 2005, r 13.1

Cases Cited:

Agar v Hyde (2000) 201 CLR 552

Allen v Snyder [1977] 2 NSWLR 685

Barnes v Addy (1874) LR 9 Ch App 244

Calverley v Green (1984) 155 CLR 242

General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 135

Greater Pacific Investments Pty Limited (in Liquidation) v Australian National Industries (1996) 39 NSWLR 143

Nelson v Nelson (1995) 184 CLR 538

Shepherd v Doolan [2005] NSWSC 42

Silverton Ltd v Harvey [1975] 1 NSWLR 659

Spencer v Commonwealth of Australia (2010) 241 CLR 118

Westpac Banking Corporation v Lahood [2011] NSWSC 1057

Wickstead v Browne (1992) 30 NSWLR 1

Texts Cited:

PW Young, C Croft, ML Smith, On Equity (2009, Thomson Reuters)

Category:

Principal judgment

Parties:

Plaintiff: Scott Pethybridge
First Defendant: Steven Gillard
Second Defendant: Lobster Beach Pty Limited ACN 127 272 342

Representation:

Counsel:
Plaintiff: Mr P Afshar

Solicitors:
Plaintiff: Robert David Webb, MDW Law
Defendants: No appearance

File Number(s):

2021/00059616

Publication restriction:

No

Judgment

1. The plaintiff, Mr Scott Pethybridge, applies for summary judgment under Uniform Civil Procedure Rules 2005 (“UCPR”), r 13.1 for equitable relief against the first and second defendants, Mr Steven Gillard and a company related to Mr Gillard and of which he is a director, Lobster Beach Pty Limited ACN 127 272 342 (“Lobster Beach”). By this judgment the Court enters the summary judgment for which the plaintiff applies and grants equitable declaratory relief and equitable compensation.

2. The plaintiff’s claim may be shortly summarised. Mr Pethybridge says that he entrusted $100,000 to Mr Gillard for Mr Gillard to invest that sum on Mr Pethybridge’s behalf in acquiring 500,000 shares (at $0.20 per share) in Betmakers Technology Group Ltd ACN 164 521 395 (“Betmakers”), a company listed on the Australian Stock Exchange which had formerly traded under the name Topbetta Holdings Limited. Mr Pethybridge alleges that Mr Pethybridge acquired the shares in Betmakers, either in his own name or in the name of Lobster Beach, and undertook to hold them on behalf of Mr Pethybridge. Without accounting to Mr Pethybridge and without his consent or knowledge, Mr Gillard sold the shares in Betmakers. Mr Pethybridge now seeks equitable compensation in the sum of $530,000 for the loss of the shares from both Mr Gillard and Lobster Beach. The sum of $530,000 is calculated at the rate of $1.06 per share, the share price of Betmakers as at the day before the hearing.

3. In conformity with UCPR, r 13.1, Mr Pethybridge’s evidence provides facts that support his claim and gives evidence that the defendants have no defence to the claim.

4. Mr Pethybridge’s application was heard on 11 November 2021. Mr Ashfar of counsel appeared for Mr Pethybridge instructed by Mr Robert Webb of MDW Law. There was no appearance for the defendants. The Court is satisfied that Mr Pethybridge’s legal representatives have made adequate attempts to notify the defendants of the hearing on 11 November 2021. Those attempts are briefly detailed in the next section.

Service on the Defendants

5. Since the commencement of these proceedings in March 2021, and despite being served with the initiating process, subsequent amendments and the Motion for summary judgment, neither Mr Gillard nor Lobster Beach has taken any active part in the proceedings. No defence has been filed by either defendant.

6. On 14 September 2021, Mr Pethybridge filed a Notice of Motion seeking inter alia that, pursuant to UCPR, r 13.1, the first and second defendants pay Mr Pethybridge equitable compensation, and other relief in the alternative.

7. An affidavit of Mr Pethybridge filed in support of his Motion sets out both his and his solicitor’s extensive attempts at corresponding with Mr Gillard during the period October 2020 to February 2021. This correspondence is outlined in greater detail below.

8. This matter was originally set down for a hearing of two hours on 12 November 2021 before Ward CJ in Eq.

9. The Court is satisfied that the plaintiff’s legal representatives gave the defendants adequate notice of the hearing. On 8 October 2019, Mr Luton White of MDW Law and the Associate to Ward CJ in Eq sent emails to Mr Gillard at his email address [email address not published], notifying him of the hearing on 12 November 2021. This was the same email address that Mr Gillard had used on several prior occasions, including for example on 20 January 2021. Mr White’s email to Mr Gillard provided the dial-in details for the hearing of the Motion. He wrote: “As the defendants in the proceeding, you and Lobster Beach Pty Ltd are able to attend.” The email from the Associate to Ward CJ in Eq set out the orders for hearing and the hearing date. Neither a reply nor any notification of non-receipt of these emails was received.

10. On 1 November 2021, Mr White sent an email to Mr Gillard advising that on 12 October 2021 Ward CJ in Eq had made orders listing the 14 September 2021 Motion on 12 November 2021 for a hearing of 2 hours and otherwise made the usual interlocutory orders for hearing. On the same day, 1 November 2021, in a separate email, Mr White provided Mr Gillard with a sealed copy of the orders made by Ward CJ in Eq. Neither a reply nor any notification of nonreceipt of these emails was received.

11. On 4 November 2021, due to an administrative change within the Court, the matter was re-listed before me and the hearing of the Motion was moved forward by one day to 11 November 2021. Approximately a week’s notice of this was given to Mr Gillard by Mr White by email to the same email address on 4 November 2021. Mr White advised Mr Gillard in this 4 November 2021 email: “The Court has now listed this matter for hearing on 11 November 2021 between 10am to 12pm before Justice Slattery.” Neither a reply nor any notification of nonreceipt of this email was received.

12. On 8 November 2021, my Chambers provided the Microsoft Teams link to the parties, including Mr Gillard at the email address referred to above. This email noted the date and time of the 11 November listing and attached the Court’s Microsoft Teams Guide to assist the parties in a smooth connection to the Virtual Courtroom. Neither a reply nor any notification of nonreceipt of this email was received.

13. On 10 November 2021 notice of supplementary affidavit evidence of Mr White and Mr Pethybridge was served by email on Mr Gillard at the same email address in anticipation of hearing the following morning. Neither a reply nor any notification of nonreceipt of this email was received.

Mr Pethybridge, Mr Gillard and Betmakers – November 2016 to November 2021

14. Mr Pethybridge’s affidavit and other evidence supports the following findings.

15. The Investment – November 2016 to March 2017. Mr Gillard and Mr Pethybridge first met in about November 2014 through common acquaintances. They had mutual interests in sports and horseracing. Together they acquired interests in several racehorses.

16. In late November 2016, Betmakers (when it was known as “Topbetta Holdings Limited”) announced a placement of shares at $0.20 per share to raise $3 million in order to fast track the launch of its business “the Global Tote”. Upon this announcement, Betmakers shares were suspended from trading on the ASX. The sole lead manager of the placement was Canaccord Genuity (Australia) Limited (“Canaccord”).

17. From around 22 November 2016, Canaccord sought commitments to invest in the placement of Betmakers shares from institutional and sophisticated investors. Mr Gillard was one of these investors. About this time, Mr Gillard informed Mr Pethybridge of an “investment opportunity” in the Betmakers share placement at $0.20 per share. Mr Pethybridge offered to invest $100,000 in Betmakers. Mr Gillard informed him it was a placement offer of securities and that he (Mr Pethybridge) would therefore need a letter from his accountant stating he was a sophisticated investor. Mr Pethybridge advised Mr Gillard that his accountant was not available to provide such a letter at short notice. Mr Gillard then said to Mr Pethybridge words to the effect: “…If you give me the $100,000, I will buy the shares and hold them for you. When you are ready, I can transfer them to you.”

18. The next day, Mr Pethybridge borrowed $100,000 from Windsor Anderson Holdings Pty Limited (“Windsor Anderson”). He then caused that money to be transferred directly to Mr Gillard for the purpose of Mr Gillard applying it towards the acquisition of 500,000 Betmakers shares at $0.20 cents per share on Mr Pethybridge’s behalf. Mr Pethybridge confirmed to Mr Gillard by telephone that he had forwarded the funds to Mr Gillard’s account and Mr Gillard admitted receipt of the funds and confirmed, “I have already told the broker that I am committed to buy the shares. Your 500,000 shares in with my own allocation”. Mr Gillard added that it usually takes about a week to finalise the transfer of the shares.

19. On 30 November 2016, Betmakers announced it had raised $3 million after completing the placement of 15,000,000 of its fully paid ordinary shares at $0.20 per share to sophisticated and institutional investors.

20. Mr Gillard and two companies he appears to control made substantial investments in Betmakers in November 2016 and in the months thereafter. It is not necessary to detail all these investments, but much can be inferred from the Form 603 Corporations Act 2001 (Cth), s 671B filings that Mr Gillard initiated in March 2017 in relation to Betmakers.

21. In general terms, Corporations Act, s 671B requires persons to give information to listed companies of “substantial holdings” (being more than 5% of the voting capital) in those companies, identifying the name and address of the substantial shareholder and any associate who has a relevant interest in shares in the listed company, and thereafter to report any movement of at least 1% in a substantial shareholder’s holding in the listed company.

22. On 17 March 2017, Mr Gillard filed a Form 603 declaration that he had become a substantial shareholder in Betmakers, holding 8,208,922 shares with total voting power of 6.52%. He nominated two entities, Lobster Beach and Gillard Superannuation Pty Limited (“Gillard Superannuation”) as the holders of the substantial interest, with Lobster Beach holding 5,562,922 shares and a Gillard Superannuation 2,646,000 shares. Mr Gillard executed the Form 603 and dated it 17 March 2017 in the capacity of “Director” which, is to be inferred, means director of Lobster Beach and Gillard Superannuation. The Form 603 does not declare that Mr Gillard held any shares in his own name. The Form 603 signed by Mr Gillard is an admission by him, and on behalf of Lobster Beach, of control over both Lobster Beach and Gillard Superannuation and thereby that he controlled the disposition of the shares that each of those entities held in Betmakers.

23. The Form 603 readily supports the inference that Mr Gillard used Mr Pethybridge’s $100,000 to purchase shares in Betmakers in the name of Lobster Beach. The Form 603 shows only one transaction in November 2016 coinciding in time with Mr Pethybridge’s conversation with Mr Gillard and the transmission of the $100,000 from Mr Pethybridge to Mr Gillard. The Form 603 shows that on 30 November 2016 Lobster Beach acquired 900,000 ordinary shares in Betmakers for a cash consideration of $180,000. The next transaction recorded on the Form 603 is not until 10 January 2017. Then a series of transactions up to 17 March 2017 contribute to Mr Gillard’s cumulative substantial shareholding of 6.52% in Betmakers.

24. As there are no share acquisitions at the relevant time in Mr Gillard’s own name, or in the name of Gillard Superannuation, the Court infers that Mr Gillard funded the initial purchase by Lobster Beach of 900,000 shares for $180,000 by using $100,000 of Mr Pethybridge’s funds to acquire 500,000 shares, as he stated to Mr Pethybridge, and using $80,000 of his own money to acquire another 400,000 shares.

25. The Defendants’ Disposal of the Betmakers Shares – 2017 to 2019. After initially increasing in value to around $0.43 per share in August 2017, the price of Betmakers shares declined. In February 2019 they were trading at only $0.03 per share. Mr Pethybridge had been following the price movement of Betmakers’ shares and by February 2019 he had begun to reach the view that his Betmakers shares would soon be valueless. He was becoming resigned to a lost investment.

26. Documents subpoenaed from Computershare, the corporate Registry manager for Betmakers, show that Lobster Beach held shares in Betmakers in several share accounts. Only one of those accounts (A/c XXXX0366) corresponds with the acquisition of 900,000 shares on 30 November 2016. On that account, through a series of share sales between 7 November 2019 and 26 November 2019, Lobster Beach disposed of the whole of its then holding of 3,750,000 Betmakers shares. Whether these were sales on or off market is not clear, nor is whether they were sales at a profit or not. Mr Pethybridge’s claim does not include an account of profits, so he has not sought to advance evidence of the sale price of these shares. It is to be inferred on the evidence therefore that Mr Gillard caused the disposal of the Betmakers shares that Lobster Beach held on behalf of Mr Pethybridge between 7 and 26 November 2019.

27. Mr Gillard’s Lobster Beach A/c XXXX0366 is to be contrasted with several other share accounts in which he held Betmakers shares through Lobster Beach. The Lobster Beach A/c XXXX0366 records very few transactions between 30 November 2016 and 26 November 2019. It was essentially a passive holding account for Betmakers shares, consistent in character with holding shares as a trustee.

28. But Mr Gillard was also an active trader in Betmakers shares. He undertook this trading on other accounts. Those other accounts were opened at various times between October 2016 and October 2017. Trading ceased on those accounts and their shareholding balances were reduced to nil at various times between June 2018 and February 2020. Finally, for a very short period, between 6 September 2019 and 9 September 2019, Mr Gillard acquired some shares in an account created in his own name, but by 19 September 2019 he had sold all those shares. By February 2020, Mr Gillard did not own any Betmakers shares either in his own name or through any corporate entity that he controlled, including Gillard Superannuation.

29. Mr Pethybridge Communicates with Mr Gillard – 2017 to 2020. Mr Pethybridge made few enquiries of Mr Gillard about his Betmakers shares between late 2016 and late 2019. This indicates that Mr Pethybridge was generally satisfied to retain his investment in the 500,000 Betmakers shares.

30. Mr Gillard and Mr Pethybridge corresponded by email and text message in 2019 and 2020. Given the state of Mr Gillard’s and Lobster Beach’s holdings in Betmakers shares by late November 2019, Mr Gillard’s replies to Mr Pethybridge’s enquiries can generally now be assessed as misleading or obfuscations.

31. After not hearing from Mr Gillard for a long time, on 3 October 2019 Mr Pethybridge received a series of text messages from Mr Gillard advising him that the Betmakers shares were likely to experience a significant increase in value. Those text messages confirmed the nature of the trust relationship between the pair over the Betmakers shares. Mr Gillard says of them at one point,

“Mate those shares i have for you have just [h]ad a huge announcement currently 9c should go to 30 or 40 c when they do [I’ll] sell half 4 u and get your $100K back and [you’ll] have a free ride [when] the rest boom…”

32. Mr Gillard gave no indication in this or any following correspondence that he was about to sell the shares in November 2019. Mr Pethybridge’s reply to this text message shows that he continued to place trust in Mr Gillard to hold the shares for him:

“Awesome mate. Thx for looking out for me. How’s things buddy?”

33. On 9 June 2020, seven months after the Betmakers shares had been sold, Mr Gillard sent a misleading text message to Mr Pethybridge about the Betmakers shares, describing them as “special and could easily go to $5”. This message clearly conveys the wrong impression that Mr Gillard was still holding the shares. All subsequent correspondence between Mr Gillard (and his legal representatives) and Mr Pethybridge up until the commencement of these proceedings clearly shows that Mr Pethybridge assumes that Mr Gillard was holding the shares on his behalf and Mr Gillard either promotes or acquiesces in this description.

34. For example, on 16 October 2020 Mr Pethybridge initiated arrangements by email with Mr Gillard for the transfer of the shares into Mr Pethybridge’s family trust. Mr Pethybridge copied this email to his accountant, Mr Mike Seymour, saying to Mr Seymour:

“Hi Mike

I’d like to introduce my mate Steve Gillard who’s holding the shares on my behalf in Topbetta on the asx.

MJ Can you please liaise with Steve to arrange transfer of the shares into the family trust.

I [g]ave Steve $100k to purchase shares when they were at 20c mate they are currently 50c so if we can open dialogue as to the best way to handle the seamless transfer that would be greatly appreciated

Cheers

Scotty”

35. Mr Gillard simply replies, “All good [I’m] on holiday till Thurs will sort”. This was the first of a series of, what in retrospect are, delaying emails, none of which declare that the shares had already been sold.

36. On 24 November 2020, Mr Pethybridge sent a text message to Mr Gillard querying whether Mr Gillard had received the email Mr Pethybridge had sent regarding “the shares your [sic] holding for me”. Mr Gillard responded that the email “went to spam” and that he would “work [it] out in the next couple of days”.

37. On 14 January 2021, Mr Pethybridge sent Mr Gillard a lengthy email requesting the return of his shares and writing:

“…I am sure you would agree I trusted you in good faith to hold the shares on my behalf because at the time I couldn’t get a sophisticated investor letter to you in the time you needed to purchase the Topbetta shares at 20c because my accountant was away and you offered to hold them for me, I trusted you implicitly and I am greatful [sic] for the opportunity you offered me.”

38. Mr Pethybridge continued in the email saying that he sought that the matter be dealt with “mate to mate”. Mr Gillard did not respond to this email.

39. Soon after on 20 January 2021, Mr Rob Webb of MDW Law began corresponding with Mr Gillard via email. He wrote to Mr Pethybridge:

“Private & Confidential,

Dear Steve,

I have received instructions to act for Windsor Anderson Holdings Pty Ltd in relation to the shares that you hold on trust for it in relation to Betmarkers [sic] Technology Group Ltd.

Before I write to you formally it would be helpful if we could discuss by phone. Please phone me at your earliest on [phone number redacted].

Look forward to speaking.

Kind regards,

Robb Webb l Partner”

40. Mr Gillard responded asking whether it would be possible to delay any discussions by one week until his accountant returned to work. After an exchange of emails on this topic, Mr Webb advised on Monday, 25 January 2021 that if the matter was not resolved by 1pm on Wednesday 27 January 2021, he was instructed to commence proceedings without further notice.

41. Mr Webb’s many subsequent attempts to contact Mr Gillard by email in February 2021 were fruitless. Mr Gillard mostly did not respond to Mr Webb’s emails.

42. On or around 5 March 2021, Mr Gillard met with Mr Webb of MDW Law. A text message sent by Mr Webb on 18 March 2021 acknowledges that “Scott was certainly comforted at the time [of 5 March 2021] to learn of your advice that this matter is a simple misunderstanding”. But Mr Webb went further to state: “However some time has now passed without a further update from you and anxieties are again increasing”. Mr Webb advised Mr Gillard that Mr Pethybridge would be able to apply for default judgment “28 days following service of the Statement of Claim”.

43. Mr Webb’s numerous attempts to contact Mr Gillard indicate that Mr Gillard was not making any serious attempt to engage, either to put on a defence or to resolve the proceedings and was generally trying to avoid dealing with Mr Webb or Mr Pethybridge.

44. Versions of Mr Webb’s emails were also sent to Mr Gillard by text message on 18 March 2021 and 25 March 2021. On 25 March 2021, Mr Gillard responded:

“Thank you im still in Perth till Tuesday even though I have 2 horses in group 1 races on Saturday I will meet with my Accountant on Wednesday and advise. Kind regards”

45. On 31 March 2021, Mr Gillard sent a text message to Mr Webb stating:

“Hi my accountant advises me that the shares will still have me liable for a 22.5% tax rate as there is no Trust deed. Also due to me advising BET and about to go on to the board I am unable to sell or move shares as I am an insider. He will write to you in this regard. . Regards.”

46. The evidence that by this time Mr Gillard had long ceased to hold shares in Betmakers indicates that this text message was misleading and deliberately so. Mr Webb attempted to contact Mr Gillard by telephone following receipt of this text message, but Mr Gillard did not answer.

47. Mr Gillard later sent a text message in reply that his accountant “will call you best to hear it from him” and offered “I can forward Scott some money if he needs a loan till I can [sell]…Silly to sell now…Also the shares have always been held in Lobster Beach Pty Ltd not my name”. Again, this falsely suggests that Lobster Beach was still the holder of the Betmakers shares, which it had not owned since November 2019.

48. By his affidavit of 10 November 2021, Mr Pethybridge deposes to the fact that he has never received back from Mr Gillard or from Lobster Beach any of his shares in Betmakers or any proceeds of sale of those shares.

49. Mr Gillard’s Notice of These Proceedings – April to November 2021. On 1 April 2021, 7 April 2021, 12 April 2021, 19 April 2021 and 23 April 2021, Mr Webb attempted to contact Mr Gillard by text message, advising that he had not heard from Mr Gillard’s accountant or lawyers in relation to the shares. Mr Gillard responded by text message generally reporting that the matter was with his accountant or his lawyer but otherwise failing to make any commitment other than to repeat that the shares “have always been held in Lobster Beach Pty Ltd not my name.”

50. Mr Webb informed Mr Gillard by email on 21 May 2021 of the potential for an application seeking default judgment and for an adjourned directions hearing on 25 May 2021. The same communication was sent by text message to Mr Gillard on 24 May 2021.

51. Mr Gillard was served with the Amended Statement of Claim on 22 April 2021 and the Further Amended Statement of Claim on 6 August 2021 and the 14 September 2021 Motion for summary judgment on 15 September 2021.

52. As earlier indicated, the Court is satisfied Mr Gillard and Lobster Beach were given adequate notice of the pleadings, the evidence and the hearing of the 14 September 2021 Motion before me on 11 November 2021.

Consideration

53. The applicable law in relation to the entry of summary judgment may be shortly stated. UCPR, r 13.1 states:

“13.1 Summary judgment

(1) If, on application by the plaintiff in relation to the plaintiff’s claim for relief or any part of the plaintiff’s claim for relief—

(a) there is evidence of the facts on which the claim or part of the claim is based, and

(b) there is evidence, given by the plaintiff or by some responsible person, that, in the belief of the person giving the evidence, the defendant has no defence to the claim or part of the claim, or no defence except as to the amount of any damages claimed,

the court may give such judgment for the plaintiff, or make such order on the claim or that part of the claim, as the case requires.

(2) Without limiting subrule (1), the court may give judgment for the plaintiff for damages to be assessed.

(3) In this rule, a reference to damages includes a reference to the value of goods.”

54. The test applied to summary judgment applications by plaintiffs is the same as that applied to summary dismissal applications by defendants. That is: “the jurisdiction summarily to terminate an action is to be sparingly employed and is not to be used except in a clear case where the Court is satisfied that it has the requisite material and the necessary assistance from the parties to reach a definite and certain conclusion”: General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 135; [1965] ALR 636; (1964) 38 ALJR 253; [1964] HCA 69 (“General Steel Industries”) at 128-129 per Barwick CJ.

55. The Court must therefore have a high degree of certainty about the ultimate outcome of a proceeding before a party in the position of the defendant is to be deprived of the opportunity to have their claim determined in the usual way: Agar v Hyde (2000) 201 CLR 552; (2000) 173 ALR 665; [2000] HCA 41 at [57] per Gaudron, McHugh, Gummow and Hayne JJ. This test has been variously expressed as including where an allegedly contentious matter is “so obviously untenable that it cannot possibly succeed”, is “manifestly groundless”, is “so manifestly faulty that it does not admit of argument”, or “would involve useless expense”: General Steel Industries at 129; Westpac Banking Corporation v Lahood [2011] NSWSC 1057 at [15]; Spencer v Commonwealth of Australia (2010) 241 CLR 118; (2010) 269 ALR 233; [2010] HCA 28.

56. To make such a determination, the Court may consider questions of law relevant to the application: Silverton Ltd v Harvey [1975] 1 NSWLR 659 at 665. This is not for the purpose of making findings of fact, but to determine whether a triable issue is disclosed: Wickstead v Browne (1992) 30 NSWLR 1 at 9.

57. By his affidavit of 10 November 2021 Mr Pethybridge has adduced evidence in conformity with UCPR, r 13.1(b). The same conclusion of the lack of an available defence to either defendant can be drawn from the objective facts. No defence has been filed by or on behalf of either party to date. Significant attempts have been made by Mr Pethybridge and his legal representatives over the course of several years to resolve this issue without the Court’s intervention. Despite these attempts, Mr Gillard has remained largely silent and avoidant.

58. The evidence strongly supports the conclusion that 500,000 Betmakers shares were acquired with Mr Pethybridge’s $100,000 and were allotted to Lobster Beach on 30 November 2016. The evidence also strongly supports the conclusion that Mr Gillard and Lobster Beach acknowledged that they held the 500,000 Betmakers shares on trust for Mr Pethybridge.

59. A relationship of trustee and beneficiary may be justified as against Lobster Beach on the basis of a resulting trust, which is to be inferred from Mr Pethybridge’s voluntary payment of the funds for the purchase of the Betmakers shares which were then held in the name of Lobster Beach: Calverley v Green (1984) 155 CLR 242; (1984) 56 ALR 483; [1984] HCA 81; Nelson v Nelson (1995) 184 CLR 538; (1995) 132 ALR 133; [1995] HCA 25.

60. A relationship of trustee and beneficiary may also be justified as against Lobster Beach on the basis of a common intention constructive trust, as the parties have here expressed a common intention that the property would be held in a particular manner (on behalf of Mr Pethybridge) and Mr Pethybridge acted to his detriment on the basis of that intention, thereby binding the conscience of the legal owner, Lobster Beach: Allen v Snyder [1977] 2 NSWLR 685 and PW Young, C Croft, ML Smith, On Equity (2009, Thomson Reuters) at [6.740]. Some later cases have treated such cases as instances of a constructive trust: Shepherd v Doolan [2005] NSWSC 42 at [35].

61. A trustee’s relevant obligations are clear. A trustee must protect trust property, keep it separate from his own property and not dispose of it without the consent of the beneficiary. Lobster Beach has breached these trust obligations and is liable to Mr Pethybridge for breach of trust.

62. Mr Gillard’s control of the actions of Lobster Beach is to be inferred in all the circumstances. He must have directed Lobster Beach’s actions in dealing with the shares. The ASIC records indicate that Louise Alice Gillard is a beneficial owner of the shares in Lobster Beach, but all the evidence points to Mr Gillard as director being the decision-maker and actor on its behalf. It is to be inferred that he directed the sale and the application of the proceeds of sale. He has therefore knowingly received (by dealing with it) trust property (Betmakers shares) in breach of trust. He is therefore liable to the plaintiff under the first limb of Barnes v Addy (1874) LR 9 Ch App 244; (1874) 43 LJ Ch 513; (1874) 30 LT 4; (1874) 22 WR 505 (“Barnes v Addy”).

63. He is also liable to the plaintiff under the second limb of Barnes v Addy. His long course of deceptive conduct towards Mr Pethybridge from late 2019 until early 2021, after selling the Betmakers shares, strongly indicates that he deliberately concealed the November 2019 sale of the Betmakers shares from Mr Pethybridge because he did not intend to account to Mr Pethybridge for his application of the proceeds of that sale. It is not easy to postulate a plausible but innocent explanation for Mr Gillard’s conduct in concealing the sale of the 500,000 Betmakers shares from Mr Pethybridge. It should therefore be inferred that the sale itself was part of a dishonest scheme on his part. In making this finding the Court is mindful that it has not heard from Mr Gillard and that it must be well satisfied that the case has been proved against him on the balance of probabilities, given the gravity of the matters being alleged: Evidence Act1995, s 140(2)(c).

64. It is unclear precisely how Mr Gillard or Lobster Beach have applied the proceeds of sale of the shares. Mr Pethybridge seeks equitable compensation which is an available remedy for his loss. The quantum of loss should be assessed at the time of the determination of the proceeding: Greater Pacific Investments Pty Limited (in Liquidation) v Australian National Industries (1996) 39 NSWLR 143 at 153-154.

65. Mr Pethybridge established that at the close of trade on 10 November 2021 Betmakers shares were trading at $1.06. Mr Pethybridge’s total loss will be assessed accordingly at $530,000. It is not necessary to consider Mr Pethybridge’s alternative claim of restitution for money had and received.

Conclusion and Orders

66. The Court has reviewed the evidence in this case solely for the purpose of ascertaining whether Mr Pethybridge’s civil case is made out. But the facts found raise the question of whether further examination of the evidence against Mr Gillard is warranted by the authorities charged with criminal investigations. The Court is mindful that it has not heard from Mr Gillard and cannot and does not make findings of criminal conduct against him in a proceeding such as this. But the Court will nevertheless refer this judgment to the Attorney General for the State of New South Wales as the first law officer of the Crown, so he can decide whether further investigation of Mr Gillard’s conduct is warranted.

67. For these reasons the Court makes the following declarations and orders:

1. Declare that from on or about 22 November 2016, the second defendant held 500,000 ordinary shares in Betmakers Technology Group Ltd (ACN 164 521 395) (“the Securities”) on trust for the plaintiff;

2. Declare that the second defendant disposed of the Securities and appropriated the proceeds thereof in breach of its obligations as trustee to the plaintiff;

3. Declare that the first defendant received the proceeds of sale of the Securities knowing that they had been sold in breach of trust by the second defendant and was knowingly involved in a dishonest scheme by which the second defendant breached its obligations as trustee of the Securities for the plaintiff;

4. Order that the defendants pay the plaintiff equitable compensation in the amount of $530,000;

5. Order that the defendants pay the plaintiff’s costs of these proceedings;

6. Grant liberty to apply for 28 days from the date of this judgment should any orders for interest up to judgment be required.

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Amendments

18 January 2022 - Coversheet correction

Decision last updated: 18 January 2022