Recent Cases

The Cleaning Doctor NSW Pty Ltd v Fonseca [2023] NSWCA 110 (26 May 2023) (Brereton and Mitchelmore JJA, Simpson AJA)


Catchwords:


EQUITY – trusts and trustees – express trusts – resulting trusts – constructive trusts – where property purchased by the second appellant was later transferred to the second respondent – whether, pursuant to an agreement between the second appellant and the second respondent, the property was held on trust for the second appellant – whether the transfer of the property to the second respondent occurred without consideration for the second appellant’s equity or for false consideration – whether the transfer of the property to the second respondent was a sham giving rise to a resulting trust in favour of the second appellant – whether the later transfer of the property to a third party to release mortgages over properties belonging to the respondents impressed those properties with constructive trusts in the second appellant’s favour

BANKING AND FINANCE – banks – bank accounts – where bank account was opened in the name of the first appellant, with the second appellant as sole signatory – where second appellant provided first and second respondents with signed blank cheques, a debit card and online access for the bank account – where first and second respondents and other persons made withdrawals from the bank account – whether the second appellant was the legal and beneficial owner of the money in the bank account – whether the first and second respondents bore the onus of proving their authority to make withdrawals from the bank account

RESTITUTION – nature of restitutionary liability – common counts – money had and received – whether primary judge failed to decide appellants’ claim as to money had and received – whether primary judge erred in finding that the appellants did not discharge the onus of proving that the withdrawals from the bank account were made without authority

TORTS – interference with goods – conversion – where first and second respondents withdrew sums of money from a bank account in the first appellant’s name by the cashing of cheques – whether primary judge erred in finding that the appellants did not discharge their onus of proving that the first and second respondents made the withdrawals without authority and therefore converted the cheques to their use and/or the use of other respondents