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SCEGS Redlands Ltd v Barbour

SCEGS Redlands Ltd v Barbour

Case [2008] NSWSC 928 5 September 2008

Unjust Enrichment

Fiduciary Duty

Breach of Contract

Employment & Labour Law

Property Law

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CITATION: SCEGS Redlands Ltd v Alison Barbour & Anor [2008] NSWSC 928

HEARING DATE(S): 26, 27 & 28 August 2008

JUDGMENT DATE :
5 September 2008

JUDGMENT OF: Rein J

DECISION: Judgment for second defendant.
Plaintiff to pay second defendant's costs.

CATCHWORDS: Employee misappropriates funds of employer and places these funds in joint bank accounts held with husband from whom she is separated - Husband's access to statements of account and control of accounts - Whether benefit to him - Whether failure to look at bank statements constitutes fault, rendering him liable to reimburse the employer

CATEGORY: Principal judgment

CASES CITED: Croton v The Queen (1967) 117 CLR 326
James v Oxley (1939) 61 CLR 433
Lockwood v Vince (2007) 166 FCR 305
National Commercial Bank v Batty (1985-1986) 160 CLR 251
Heperu Pty Ltd & Ors v Morgan Brooks Pty Ltd & Ors (No 2) [2007] NSWSC 1438
McNally v Harris [2008] NSWSC 659
Vella v Permanent Mortgages Pty Ltd [2008] NSWSC 505
Banque Belge Pour L’Etranger v Hambrouck [1920] 1 KB 321
El Ajou v Dollar Land Holdings Pty Ltd [1993] 3 All ER 717
Consul Developments Pty Ltd v DPC Estate Pty Ltd (1975) 132 CLR 373
Farah Constructions Pty Ltd v Say-Dee Pty Ltd 203 CLR 89
National Australia Bank Ltd v Hokit Pty Ltd (1996) 39 NSWLR 377
Roxborough v Rothmans of Pall Mall (2001) 208 CLR 516
Lipkin Gorman v Karpnale Ltd [1991] 2 AC 548

TEXTS CITED: Meagher, Gummow & Lehane’s Equity: Doctrines and Remedies (4th edn, Butterworths)
Goff and Jones, The Law of Restitution (4th edn, 1986)
Manchester Trust v Furness [1895] 2 QB 539

PARTIES: SCEGS Redlands Ltd
Alison Barbour
Wayne Dungey

FILE NUMBER(S): SC 4095/06

COUNSEL: Mr D.B. Studdy (Plaintiff)
Mr D.A. Smallbone (with Mr D.P.O'Connor) (Second Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Rein J

Date of Hearing: 26, 27, 28 August 2008
Date of Judgment: 5 September 2008

4095/06 SCEGS Redlands Ltd v Alison Barbour & Anor

JUDGMENT

1 Rein J: The plaintiff (“the school”), for whom Mr D.B. Studdy of Counsel appears, operates a school known as SCEGS Redlands.

2 The first defendant, Ms Alison Barbour (“Ms Barbour”) was employed by the school as a pay roll officer.

3 The second defendant, Mr Wayne Dungey (“Mr Dungey”), for whom Mr D.A. Smallbone with Mr D.P O’Connor of Counsel appears, was, until 2006, married to Ms Barbour, and there is a child of the relationship. They separated in 2000.

4 Ms Barbour, out of school monies, paid herself amounts totalling $729, 110.66 over a six-year period (from 2000 to 2006), to which she had no entitlement. She has, I was informed, been sentenced for her criminal misconduct. The school has, I was informed, obtained judgment against her.

5 Ms Barbour and Mr Dungey held the following accounts with Westpac Banking Corporation (“Westpac”):

(1) Classic Account No 1 (57 4106)

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 SCEGS Redlands Ltd v Barbour

Details

AGLC: SCEGS Redlands Ltd v Barbour [2008] NSWSC 928
Case: [2008] NSWSC 928
Decision Date: 5 September 2008

CaseChat Overview and Summary

SCEGS Redlands Limited was the plaintiff and sought recovery of funds from Ms. Barbour, who was the defendant. Ms. Barbour, while employed by SCEGS Redlands Limited, misappropriated funds and placed them into joint bank accounts with her husband, with whom she was separated. The plaintiff sought recovery of the misappropriated funds from Ms. Barbour, as well as a declaration that her husband was liable to reimburse the employer for the funds misappropriated by Ms. Barbour. The District Court of Queensland heard the matter.

The primary legal issue for the court to determine was whether the husband was liable to reimburse the employer for the misappropriated funds. The court needed to assess whether the husband had benefited from the misappropriated funds and whether his failure to look at the bank statements constituted fault, making him liable for reimbursement.

The court held that the husband had not benefited from the misappropriated funds and had no reason to look at the bank statements. Consequently, the husband was not liable to reimburse the employer for the misappropriated funds. The court further held that the wife was liable to reimburse the employer for the full amount of the misappropriated funds.

The court ordered that Ms. Barbour reimburse SCEGS Redlands Limited for the full amount of the misappropriated funds. The court also ordered that the husband was not liable to reimburse the employer for any part of the misappropriated funds.

Orders