Catchwords:
EQUITY – Breach of fiduciary duties – Where director of corporate trustee used money borrowed on security over the corporate trustee’s assets to acquire properties – Where director of corporate trustee caused trust funds to be distributed to himself
EQUITY – Trustee de son tort – Whether doctrine applies – Where trustee a director of the corporate trustee – Where trust funds paid to entities controlled by trustee de son tort – Held doctrine applies where a person deals with trust assets without power to do so – Held whether trust funds paid to trustee de son tort’s alter ego is immaterial
EQUITY – Alternative claim – Claim that director was knowing recipient of trust property – Claim that director induced or procured breach of trust by corporate trustee – Claim that director knowingly participated in a fraudulent design by corporate trustee – Corporate trustees only capable of acting through individuals – Held attributing primary liability to corporate entity is mischaracterisation of facts where only conduct giving rise to breach of trust is that of director
EQUITY – Alternative claim – Decision to distribute trust funds not made honestly and in good faith – Held claim inconsistent with director liability on the facts of the case
EQUITY – Defences – Estoppel – Difference between promissory estoppel and conventional estoppel – Not found on the facts
EQUITY – Defences – Laches – Where defence applies to personal claim but not to proprietary claim
EQUITY – Just allowance – Where profit not derived as consequence of fiduciary’s skill and effort – Where some of trust property lost
EQUITY – Constructive trust – Application of proprietary remedy to breach of fiduciary duty – Application of proprietary remedy where finding of trustee de son tort made – Where proprietary remedy fails absent tracing – Held proprietary claim not precluded merely because recipient took trust assets under particular form of transaction – Held Court entitled to look at the substance of what occurs
EQUITY – Tracing – Tracing rules – Held Court should take a common sense and reasonable approach – Held Court should be prepared to draw reasonable inferences concerning what become of trust assets
CORPORATIONS LAW – Ratification – Where corporate trustee was sole shareholder – Where corporate trustee owes duties to beneficiaries – Whether sole shareholder can ratify director’s breach of duty where duty affects the discharge of the corporate trustee’s obligations toward beneficiaries
CORPORATIONS LAW – Defences – Corporations Act 2001 (Cth), s 1318 – Not found on the facts
LIMITATION OF ACTIONS – Leave to amend – Whether claim that directors’ declaration is void because in breach of Corporations Act 2001 (Cth) is founded on a “simple contract” under Limitation of Actions Act 1958 (Vic), s 5 – Whether Limitation of Actions Act 1958 (Vic), s 21 applies to constructive trustees – Question of what amounts to fraud under Limitation of Actions Act 1958 (Vic), ss 21(1)(a) and 27 – Whether Limitation of Actions Act 1958 (Vic), s 21(1)(b) applies to property received or held by fiduciary’s alter ego – Where facts relevant for limitation by analogy under Corporations Act 2001 (Cth), s 1317K arose during trial
TRUST AND TRUSTEES – Defences – Trustee Act 1958 (Vic), s 67, 68 – not found on the facts
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