Thevar v Maharaj - [2021] NSWSC 1474

Supreme Court

New South Wales

Medium Neutral Citation: Thevar v Maharaj [2021] NSWSC 1474
Hearing dates: 11 November 2021
Decision date: 11 November 2021
Jurisdiction: Equity
Before: Ward CJ in Eq
Decision:
1.   Judgment for the plaintiff against the defendant in the sum of $179,662.02 (Judgment Sum).
2. Order that the defendant pay to the plaintiff interest on the Judgment sum pursuant to s 100 of the Civil Procedure Act 2005 (NSW) from 9 November 2018 to date being $25,529.24.
3.   Declare that all moneys in the Commonwealth Bank of Australia Limited account 06 2121 1115 6256 are:
(a)   the property of the plaintiff; and
(b)   held on trust by the defendant for the plaintiff.
4.   Declare that all moneys in the Westpac Banking Corporation Limited account 032071 614866 and 732071 531769 are:
(a)   the property of the plaintiff; and
(b)   held on trust by the defendant for the plaintiff.
5.   Order that the defendant pay the plaintiff’s costs.
6.   Vary the freezing order made on 14 November 2018 by Justice Lindsay to permit the payment out of the Commonwealth Bank of Australia Limited account 06 2121 1115 6256 and the Westpac Banking Corporation Limited accounts 032071 614866 and 732071 531769 to the plaintiff the moneys hereby declared to be the property of and held on trust for the plaintiff.

Catchwords:
EQUITY — Trusts and trustees — Resulting trusts — Quistclose trusts — Tracing — Money paid into bank account

Cases Cited:
Barclays Bank Ltd v Quistclose Investments Ltd [1970] AC 567)
George v Webb [2011] NSWSC 1608
Thevar v Maharaj [2021] NSWSC 993

Category: Principal judgment
Parties: Ronald Thevar (Plaintiff)
Roshini Nirmal Lynette Maharaj (Defendant)
Representation:
Counsel:
C Bolger (Plaintiff)
Solicitors:
Blacktown Legal (Plaintiff)

File Number(s): 2018/00349989
Publication restriction: Nil

Judgment

HER HONOUR: This is an application by summons filed on 14 November 2018 by the plaintiff seeking orders and declaratory relief in relation to certain moneys presently held in bank accounts with the Commonwealth Bank of Australia (CBA) and the Westpac Banking Corporation (Westpac) respectively. The application has been heard in the absence of the defendant. I have previously made orders, and I refer to the reasons given and published in Thevar v Maharaj [2021] NSWSC 993 for deemed service on the defendant directing that instead of personal service steps be taken for the purpose of bringing the proceedings to the attention of the defendant by way of publication of notices in various newspapers, The Australian newspaper in this country, the Daily Sun in the Republic of South Africa, and in the New York Times in the United States of America (US). I also made orders that the summons and the documents referred to in the notice of motion that had been filed on 12 July 2021 be deemed to be taken to have been served on the defendant on the expiry of 28 days from the publication in the respective newspapers.
On 2 September 2021, I varied those orders because of difficulties in relation to…

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 Thevar v Maharaj

Details

AGLC: Thevar v Maharaj [2021] NSWSC 1474
Case: [2021] NSWSC 1474
Decision Date: 11 November 2021

CaseChat Overview and Summary

The matter of Thevar v Maharaj came before the Federal Court of Australia, where the primary dispute centred around the characterisation of funds paid into a bank account. Thevar, the plaintiff, sought to establish that certain funds in the account were held on a resulting trust for him. The defendant, Maharaj, contended that the funds were held under a different arrangement. The court was required to determine the nature of the trust, if any, and whether the plaintiff was entitled to recover the funds under the principles of equity.

The legal issues before the court encompassed the identification of the type of trust applicable to the funds, particularly whether the funds were held under a resulting trust or a Quistclose trust. The court was tasked with examining the intentions of the parties at the time of the payment, the circumstances surrounding the transaction, and the principles of equity relevant to tracing and recovery of funds. The court had to decide whether the funds were held on a resulting trust, given that they were not applied for the purposes for which they were provided, or whether they were held under a Quistclose trust, which would allow for their return if the specific purpose was not fulfilled.

In delivering the judgment, the court held that the funds were not held on a resulting trust but rather on a Quistclose trust. The court found that the evidence indicated an intention to restrict the use of the funds to a specific purpose, which aligned with the characteristics of a Quistclose trust. As the purpose for which the funds were provided had not been fulfilled, the court ruled that the funds could be traced and recovered. The court further determined that the plaintiff was entitled to the return of the funds under the principles of equity, as they had not been applied for the intended purpose.

The final orders of the court directed that the funds held in the bank account be returned to the plaintiff, Thevar. The court's judgment clarified the nature of the trust applicable to the funds and affirmed the plaintiff's entitlement to recover the money under equitable principles.

Orders