Recent Cases

Ridge Estate Pty Ltd v Fairfield Pastoral Holdings Pty Ltd [2024] FCAFC 17 (23 February 2024) (Banks-Smith, O’Sullivan and Feutrill JJ)


Catchwords:


TRUSTS AND TRUSTEES – trustee removed by deed – nature and characteristics of former trustee’s right of indemnity following removal – principles

CONVEYANCING – fraudulent conveyance – whether deed of removal of trustee voidable under s 86 of the Law of Property Act 1936 (SA) as conveyance of property made with intent to defraud creditors – where trustee entitled to payment from trust assets pursuant to right of indemnity – whether trustee a creditor for purpose of s 86 – whether trustee a person prejudiced for purpose of s 86 – where removal denied trustee its rights of self-help and delayed payment – whether deed of removal entered into with intent to defraud creditors – whether intention to hinder, delay or defeat creditors – where primary judge declared deed of removal and underlying conveyances void – orders of primary judge upheld

PRACTICE AND PROCEDURE – second appellant received secret commissions – second respondent claimed recovery of secret commissions – where principal entitled to pursue recovery of secret commissions but did not do so – where appellants denied in pleaded defence that second respondent had standing to pursue claim – where principal and second respondent entered into deed of assignment by which principal assigned all rights to pursue recovery of secret commissions to second respondent – deed of assignment not pleaded but disclosed during trial – where primary judge ruled during trial that deed of assignment admissible – primary judge held second respondent entitled by deed of assignment to pursue recovery of secret commissions – primary judge ordered second appellant to pay sum of secret commissions to second respondent – procedural fairness – whether primary judge denied appellants procedural fairness by permitting respondents to rely on unpleaded assignment – whether respondents ought to have been held to pleaded case – where legal issue raised late – role of pleadings and submissions – application of principles – whether deed of assignment ‘in play’ – appeal grounds dismissed

COSTS – application for leave to appeal costs orders of the proceeding – where primary judge took into account outcome of thirteen claims – broad brush analysis to consideration of apportionment – applicable principles – not sufficiently arguable that House v The King error made out