http://www.austlii.edu.au/au/cases/nsw/NSWCA/2014/462.html
EQUITY – Tracing – Onus and standard of proof – Where wrongdoer has mixed stolen moneys with own moneys – Black v Freedman claim attaches immediately to stolen money and its traceable product – Volunteer recipient of stolen funds, or traceable product, in no better position than the wrongdoer – Onus on wrongdoer and/or recipient to prove what contribution was from the wrongdoer’s own moneys – Standard of proof in Briginshaw v Briginshaw and s140 Evidence Act applied
LIMITATION OF ACTIONS – Partnership – Action for an account – Cause of action arises upon dissolution of partnership – Application of s15 Limitation Act directly or by analogy – Laches will not be available as a further defence in circumstances where the claim is subject to a statutory bar
LIMITATION OF ACTIONS – Partnership – Action for an account of profits or to recover trust property — Application of s 15 Limitation Act by analogy to an action for an account of profits in relation to trust assets – Application of s 47 Limitation Act directly or by analogy to an action to recover trust property or profits derived from trust property – When does time begin to run – When did the plaintiff first discover, or could have with reasonable diligence discovered, the facts giving rise to the cause of action and that the cause of action has accrued
PARTNERSHIPS AND JOINT VENTURES – Partnerships – Actions by and against partners – Partnership funds mixed with funds of a partner and used to purchase residential and investment properties – Black v Freedman claim – Institutional constructive trust over the partnership moneys (or their traceable product) – Equitable obligations imposed at the time of theft or, in the case of a volunteer recipient, from the time that they acquire knowledge of the theft – Whether indefeasibility defence under s 42 Real Property Act available for volunteer recipient where acquired registered title prior to being placed on notice of the theft – Fraud exception to s42 not pleaded – Fraud cannot be raised as a new point on appeal – Whether any in personam exception to indefeasibility applicable
PARTNERSHIPS AND JOINT VENTURES – Partnerships – Dissolution – Single adventure or undertaking – Whether a partnership operating two businesses can be considered a single venture – Whether separate termination dates for the businesses precludes the partnership being seen as a “single venture”
PARTNERSHIPS AND JOINT VENTURES – Partnerships – Partnership Property – Application of ss20(1) and 21 Partnership Act – Deeming of property bought with partnership funds to be partnership property “held in trust for the partnership” – Statutory provisions do not create a trust “in the strict sense” nor are they sufficient to make the land “trust property”
TRUSTS – General – Partnership funds mixed with funds of a partner and used to purchase residential and investment properties – Whether the moneys or the properties (as their traceable product) are subject to statutory, express, resulting, or constructive trusts – Whether proprietary and/or accounting relief available