Smith v Leveraged Equities Ltd

Case [2020] WASCA 122


JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   SMITH -v- LEVERAGED EQUITIES LTD [2020] WASCA 122

CORAM:   BUSS P

BEECH JA

VAUGHAN JA

HEARD:   11 & 12 NOVEMBER 2019

DELIVERED          :   5 AUGUST 2020

FILE NO/S:   CACV 40 of 2018

BETWEEN:   EDWIN GEORGE SMITH

Appellant

AND

LEVERAGED EQUITIES LTD

First Respondent

TODD MICHAEL KING

Second Respondent

ACN 118 453 679 PTY LTD

Third Respondent

AUSTRALIAN STOCKBROKING AND ADVISORY SERVICES PTY LTD

Fourth Respondent

GLENICE BERYL KING

Fifth Respondent

ON APPEAL FROM:

Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA

Coram:   ALLANSON J

File Number            :   CIV 3124 of 2009


Catchwords:

Restitution - Unjust enrichment - Principles of 'strict recipient liability' - Whether first respondent received first share transfer as volunteer - Turns on own facts

Restitution - Unjust enrichment - Whether primary judge erred in law by failing to order first respondent to make restitution to the appellant in respect of second and third share transfers - Whether first respondent obtained benefit and unjustly enriched by the receipt of shares - Where return of shares without prejudice to appellant's claim - Whether return of shares by first respondent attributable to second and third share transfers - Whether change in position or provision of good consideration provide first respondent with available defences - Turns on own facts

Corporations - Whether appellant entitled to recover against fourth respondent pursuant to s 917E of the Corporations Act 2001 (Cth) - Whether disclosure for purpose of s 917D of Corporations Act 2001 (Cth) - Turns on own facts

Appeal - Whether new case advanced on appeal - Whether 'dealing' case relied on for ground of appeal the appellant's case as particularised for trial - Turns on own facts

Legislation:

Corporations Act 2001 (Cth), s 760A, s 761E, s 766A, s 766C, s 917A, s 917B, s 917C, s 917D, s 917F

Result:

Appeal on ground 1 allowed in part 
Matter partially remitted to primary judge for determination of defences and quantification
Appeal otherwise dismissed

Category:    B

Representation:

Counsel:

Appellant : S K Dharmananda SC & C S Williams
First Respondent : M N Solomon SC & T J Porter
Second Respondent : No appearance
Third Respondent : No appearance
Fourth Respondent : M Jones SC & J A Thornton
Fifth Respondent : No appearance

Solicitors:

Appellant : Solomon Brothers
First Respondent : HWL Ebsworth Lawyers (Perth)
Second Respondent : No appearance
Third Respondent : No appearance
Fourth Respondent : Wotton Kearney - Melbourne
Fifth Respondent : No appearance

Case(s) referred to in decision(s):

Airservices Australia v Ferrier [1996] HCA 54; (1996) 185 CLR 483

Alpha Wealth Financial Services Pty Ltd v Frankland River Olive Co Ltd [2008] WASCA 119; (2008) 66 ACSR 594

Australasian Annuities Pty Ltd v Rowley Super Fund Pty Ltd [2015] VSCA 9; (2015) 318 ALR 302

Australia and New Zealand Banking Group Ltd v Westpac Banking Corporation [1988] HCA 17; (1988) 164 CLR 662

Australian Financial Services and…

Continue reading Smith v Leveraged Equities Ltd

Sign in free to access the full text

Details
AGLC
Smith v Leveraged Equities Ltd [2020] WASCA 122
Case
[2020] WASCA 122
Decision Date

CaseChat Overview and Summary

Smith initiated legal proceedings against Leveraged Equities Ltd and others, contending that the first respondent received share transfers as a volunteer and that the company, the fourth respondent, was subject to a statutory duty to disclose certain information. The dispute reached the court, which needed to determine several legal issues. Firstly, whether the first respondent, by receiving the first share transfer, acted as a volunteer, thereby triggering strict recipient liability. Secondly, whether the first respondent unjustly enriched themselves by receiving the second and third share transfers, and if so, whether the primary judge erred in not ordering restitution. Thirdly, if the return of shares by the first respondent was due to the second and third share transfers, and whether the first respondent's change in position or the provision of good consideration provided available defences. Lastly, whether the appellant was entitled to recover against the fourth respondent under section 917E of the Corporations Act 2001, and if the disclosure required by section 917D of the same Act was applicable.

The court meticulously examined the facts of the case to determine if the first respondent received the first share transfer as a volunteer, which would impose strict recipient liability. The court concluded that this determination hinged on the specific circumstances of the case. Regarding the second and third share transfers, the court found that the first respondent did obtain a benefit and unjustly enriched themselves. The court held that the primary judge erred in not ordering restitution, as the return of shares by the first respondent was attributable to the second and third share transfers. The court also noted that neither the change in position nor the provision of good consideration provided the first respondent with available defences. Finally, the court found that the appellant was not entitled to recover against the fourth respondent under section 917E of the Corporations Act 2001, and that the disclosure required by section 917D was not applicable.

The court ordered that the first respondent make restitution to the appellant in respect of the second and third share transfers. The court also held that the appeal did not present a new case, as the 'dealing' case relied on for the ground of appeal was the appellant's case as particularised for trial. The specific facts of the case determined the outcome of each legal issue, and the court's decision was based on a thorough analysis of those facts. The final orders of the court required the first respondent to make restitution to the appellant and clarified the legal positions of the parties involved in the dispute.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.