Twigg v Pitcher Partners Holdings Pty Ltd

Solicitors: Roberts & Partners Lawyers (Plaintiffs/Respondents) Gadens Lawyers (First, Second and Third Defendants/Applicants) File Number(s): 2022/150914

JUDGMENT

1. The background to this matter is set out in my judgment of 20 February 2023 [1] as follows: "The late Mr William Twigg founded, and, until his death in 1996, operated a large waste and landfill business. The business was operated through a structure of discretionary family trusts, the beneficiaries of which included Mr Twigg's wife, the first plaintiff Mrs Diane Twigg, and their three children Frances, Elizabeth and the fourth defendant, Mr Max Twigg … After William's death in 1996, the businesses were operated by Max, evidently successfully. In 2007, Max negotiated the sale of the businesses for over $150 million. Apart from three 'gifts' of $5 million to each of Diane, Frances and Elizabeth, Max directed the net sale proceeds ('the Sale Proceeds') to entities he controlled. He then used those proceeds for his own benefit. In March 2019, Diane and three companies of which she and her daughters are presently directors, and of which Diane is the sole shareholder, brought proceedings ('the Earlier Proceedings') in the Commercial List against Max and companies controlled by Max, including the fifth defendant in the current proceedings, Twigg Co Pty Ltd. In substance, Diane alleged that Max had breached his fiduciary duties as a director of the corporate plaintiffs by causing those companies to distribute to Max the bulk of the Sale Proceeds; some $130 million. The Earlier Proceedings were complex. They were resolved by judgments given by Ball J on 31 August 2020, and on 11 December 2020. Before Ball J, Diane and the corporate plaintiffs were, in substance, successful. They obtained orders entitling them to recoveries from Max and his associated companies in the order of $120 million. On 4 May 2022 the Court of Appeal dismissed Max's appeal from Ball J's decision. Diane and the corporate plaintiffs … have recovered some $30 million from Max and his associated companies. On 25 May 2022 … the plaintiffs commenced these proceedings against Pitcher Partners. Pitcher Partners was engaged to provide services to the Max Twigg group at the relevant times and, it is alleged, to Diane. The plaintiffs have also joined Max … as [a] defendant. The plaintiffs allege that Pitcher Partners breached fiduciary duties owed to them and knowingly assisted in a fraudulent design or plan undertaken by Max in respect of the misuse of the Sale Proceeds … Diane and the plaintiffs seek to recover from Pitcher Partners equitable compensation being the 'balance of their losses', that is some $120 million beyond that recovered from Max and his associated companies." [2]