Port of Brisbane Corp v ANZ Securities [2002] QCA 158
[2002] QCA 158
Court of Appeal (Qld)|2002-05-10|Before: McPherson and Davies JJA and Mullins J.Separate, reasons for judgment by each member of the Court, each concurring as to the, orders made.
McPherson and Davies JJA and Mullins J.Separate, reasons for judgment by each member of the Court, each concurring as to the, orders made.
Catchwords
BANKING AND FINANCE - INSTRUMENTS - CHEQUES - GENERAL - cheque paid by the
paying bank and collected by the collecting bank on behalf
of the principal -
whether the payer of the money is paying bank, or principal or true owner of the
Source
Original judgment source is linked above.
Catchwords
BANKING AND FINANCE - INSTRUMENTS - CHEQUES - GENERAL - cheque paid by thepaying bank and collected by the collecting bank on behalfof the principal -whether the payer of the money is paying bank, or principal or true owner of themoneyBANKING AND FINANCE - INSTRUMENTS - CHEQUES - OTHER MATTERS - chequewritten to agent who does not see it nor have any reason toinvestigate who thedrawer of the cheque is – whether the agent under a duty to investigatethe identity of the drawer of thecheque -whether good faith is all that isrequiredEQUITY - TRUSTS AND TRUSTEES - CONSTITUTION AND CLASSIFICATION OF TRUSTSGENERALLY - CLASSIFICATIONS OF TRUSTS IN GENERAL - IMPLIED TRUSTS - RESULTINGTRUSTS - GENERALLY - propertyof trust paid away according to the instructionsof person believed to be entitled to give the instructions - payee holding nomoretrust property – whether a resulting trust can be declaredEQUITY - TRUSTS AND TRUSTEES - CONSTITUTION AND CLASSIFICATION OF TRUSTS
GENERALLY - CLASSIFICATIONS OF TRUSTS IN GENERAL - IMPLIED TRUSTS - RESULTING
TRUSTS - GENERALLY - payment
made to trustee to be held on trust for a
beneficiary - beneficiary not true owner of proceeds of trust - whether trustee
becomes
liable for breach of trust on payment to supposed beneficiary or only on
becoming aware of identity of true beneficial owner
EQUITY - TRUSTS AND TRUSTS - POWERS, DUTIES, RIGHTS AND LIABILITIES OF
TRUSTEES - LIABILITY FOR BREACH OF TRUST - WHAT CONSTITUTES
A BREACH OF TRUST
AND WHO MAY BE LIABLE - trustee not undertaking fiduciary duties to true owners
- trustee was not aware of identity
of true owner of trust property - whether
fiduciary duties can be applied – whether a breach of trust
GENERAL CONTRACTUAL PRINCIPLES - PARTICULAR PARTIES - PRINCIPAL AND AGENT -
RELATIONS BETWEEN AGENT AND THIRD PERSONS - IN RESPECT
OF MONEY RECEIVED - money
paid under mistake of fact to agent - money paid out on instructions of
principal - whether only recourse
is against principal - whether a stockbroker
an agent of principal
RESTITUTION - GENERAL PRINCIPLES - payment is made and paid away on
instructions of the payer - whether unjust enrichment has occurred
RESTITUTION - OTHER MATTERS - OTHER CASES - money paid to agent then paid
out on instructions - whether defence of change of position
available - whether
in paying the money out agent was acting to its detriment “on the faith of
the receipt”.Australia and New Zealand Banking Corporation v
Westpac Banking Corporation (1988) 164 CLR 662, appliedBarnes v Addy
(1874) 9 Ch App 386, appliedBaylis v Bishop of London [1913] 1 Ch
127, consideredBlack v Freedman [1910] HCA 58
(1910) 12 CLR 105,
appliedConsul Development Pty Limited v DPC Estates Pty Ltd [1975] HCA 8
(1975)
132 CLR 373, appliedCurrie v Misa (1875) LR 10 Ex D 153,
appliedDaly v Sydney Stock Exchange [1986] HCA 25
(1986) 160 CLR 371,
followedDavid Securities Pty Ltd v Commonwealth Bank of Australia
[1992] HCA 48
(1992) 175 CLR 353, followedJames v Oxley [1939] HCA 1
(1939) 61 CLR 433,
distinguishedLipkin Gorman v Karpnale Ltd [1991] 2 AC 548,
v The Queen (1999) 195 CLR 615, consideredPavey & Matthews Pty
Ltd v Paul (1987) 162 CLR 32, consideredPerel v Australian Bank of
Commerce [1923] NSWStRp 61
(1923) 24 SR (NSW 62, consideredPollard v Bank of England
(1871) LR 6 QB 623, appliedR v Vinogradoff [1935] WN 68,
appliedSinclair v Brougham [1914] AC 398, consideredState Bank
of New South Wales Ltd v Swiss Bank Corporation (1995) 39 NSWLR 350,
distinguishedTresize v National Australia Bank Ltd (1994) 30 FCR 134,
appliedUnited States Surgical Corporation v Hospital Products
International Pty Ltd [1983] 2 NSWLR 157, appliedWestdeutsche Bank v
Islington Local Borough Council [1996] UKHL 12
[1996] AC 669, distinguished
Judgment (28 paragraphs)
[1]
BANKING AND FINANCE - INSTRUMENTS - CHEQUES - GENERAL - cheque paid by the paying bank and collected by the collecting bank on behalf of the principal - whether the payer of the money is paying bank, or principal or true owner of the money BANKING AND FINANCE - INSTRUMENTS - CHEQUES - OTHER MATTERS - cheque written to agent who does not see it nor have any reason to investigate who the drawer of the cheque is - whether the agent under a duty to investigate the identity of the drawer of the cheque -whether good faith is all that is required EQUITY - TRUSTS AND TRUSTEES - CONSTITUTION AND CLASSIFICATION OF TRUSTS GENERALLY - CLASSIFICATIONS OF TRUSTS IN GENERAL - IMPLIED TRUSTS - RESULTING TRUSTS - GENERALLY - property of trust paid away according to the instructions of person believed to be entitled to give the instructions - payee holding no more trust property - whether a resulting trust can be declared EQUITY - TRUSTS AND TRUSTEES - CONSTITUTION AND CLASSIFICATION OF TRUSTS GENERALLY - CLASSIFICATIONS OF TRUSTS IN GENERAL - IMPLIED TRUSTS - RESULTING TRUSTS - GENERALLY - payment made to trustee to be held on trust for a beneficiary - beneficiary not true owner of proceeds of trust - whether trustee becomes liable for breach of trust on payment to supposed beneficiary or only on becoming aware of identity of true beneficial owner EQUITY - TRUSTS AND TRUSTS - POWERS, DUTIES, RIGHTS AND LIABILITIES OF TRUSTEES - LIABILITY FOR BREACH OF TRUST - WHAT CONSTITUTES A BREACH OF TRUST AND WHO MAY BE LIABLE - trustee not undertaking fiduciary duties to true owners - trustee was not aware of identity of true owner of trust property - whether fiduciary duties can be applied - whether a breach of trust GENERAL CONTRACTUAL PRINCIPLES - PARTICULAR PARTIES - PRINCIPAL AND AGENT - RELATIONS BETWEEN AGENT AND THIRD PERSONS - IN RESPECT OF MONEY RECEIVED - money paid under mistake of fact to agent - money paid out on instructions of principal - whether only recourse is against principal - whether a stockbroker an agent of principal RESTITUTION - GENERAL PRINCIPLES - payment is made and paid away on instructions of the payer - whether unjust enrichment has occurred RESTITUTION - OTHER MATTERS - OTHER CASES - money paid to agent then paid out on instructions - whether defence of change of position available - whether in paying the money out agent was acting to its detriment "on the faith of the receipt".
[2]
Australia and New Zealand Banking Corporation v Westpac Banking Corporation(1988) 164 CLR 662, applied