the plaintiff; (v) an order that the first defendant be charged with interest at the rate to be determined by the Court on the said sum of $2 million (Australian) or on such part thereof as the Court thinks appropriate; (vi) alternatively to paragraph (v) hereof, a claim for interest pursuant to the Supreme Court Act, 1979; (vii) for such further or other accounts, directions or inquiries as are necessary; (viii) for such further or other relief as the Court thinks appropriate; (ix) damages; (x) costs. 23. AND the plaintiff claims against the second defendants:- (a) a declaration that the second defendants are jointly and severally liable to the plaintiff; (b) for an order that the second defendants and each of them indemnify the plaintiff against any loss or damage which the first defendant fails to pay; (c) for such further or other relief as the Court thinks appropriate." The amended defence of the first defendant and the first named second defendant is in the following terms: "1. The First Defendant and first named Second Defendant (Geoffrey Robert Clark) (hereinafter both called "the Defendants") do not admit the allegations made in paragraph 1 of the amended statement of claim. 2. The Defendants admit that the First Defendant is a corporation incorporated in the Northern Territory pursuant to the Legal Practitioners (Incorporation) Act (Northern Territory) but otherwise do not admit the allegations made in paragraph 2 of the amended statement of claim. 3. The Defendant admits that Geoffrey Robert Clark was at all material times a director of the First Defendant but deny that Alexander Silvester and Michael James Gillooly were at all material times directors of the First Defendant as alleged in paragraph 3 of the amended statement of claim. 4. The Defendants do not admit the allegations made in paragraphs 4 and 21 of the amended statement of claim. 5. The Defendants admit that the First Defendant carried on business and held itself out as a firm of solicitors practicing under the name and style of "Clark and Partners" for the period from 1 July 1984 to 2 November 1984 but otherwise deny the allegations made in paragraph 5 of the amended statement of claim. 6. The Defendants admit the allegations made in paragraphs 6 and 7 of the amended statement of claim. 7. The Defendants do not know and do not admit the allegations made in paragraphs 8 and 9 of the amended statement of claim. 8. The Defendants deny the allegations made in paragraph 10 of the amended statement of claim. 9. The Defendants do not know and do not admit the allegations made in paragraph 11(a) of the amended statement of claim. 10. As to paragraph 11(b) of the amended statement of claim the Defendants admit that $2,000,000.00 (Australian) was deposited in the trust account by the National Bank on 18 October 1984, and the Defendants say that the said $2,000,000.00 (Australian) was deposited for and on behalf of Burgundy Royale Investments Pty Ltd (hereinafter called "BRI"). The Defendants otherwise do not admit the allegations in paragraph 11(b). 11. The Defendants deny each and every allegation made in paragraph 12 of the amended statement of claim. 12. The Defendants say that between 18 October 1984 and 2 November 1984 the First Defendant did wholly disburse the said sum of $2,000,000.00 (Australian) together with other monies held for and on behalf of BRI pursuant to and in accordance with the instructions of BRI. The Defendants otherwise do not admit the allegations in paragraph 13 of the amended statement of claim. 13. The Defendants admit receiving a letter dated 30 March 1987 apparently from solicitors named "Birman and Ryde" but otherwise do not admit each and every allegation made in paragraph 14 of the amended statement of claim. 14. The Defendants do not admit the allegations in paragraph 15 of the amended statement of claim, and deny that the First Defendant was under any obligation or duty to account to the Plaintiff for and/or to return any monies to the Plaintiff as alleged or at all. 15. (a) The Defendants deny that any trust was created or at any time existed between the Plaintiff and the First Defendant as alleged in paragraph 16 of the amended statement of claim or at all. (b) In the alternative to (a) hereof, if any trust was created or existed (which is denied) then any such trust (which is denied) was void for uncertainty. (c) In the further alternative to (a) hereof, if any trust was created or existed (which is denied) then the Defendants deny any breach as alleged or at all. (d) Further, the Defendants deny that the Plaintiff has suffered any loss or damage as alleged in paragraph 17 of the amended statement of claim. (e) Further, the Defendants deny each and every allegations made in paragraphs 16 and 17 of the amended statement of claim as if the same were set out herein and denied seriatim. 16. The Defendants deny that the First Defendant owed any duty of care to the Plaintiff as alleged in paragraphs 18 of the amended statement of claim or at all. 17. The Defendants deny that the First Defendant owed any duty of care to the Plaintiff as alleged in paragraphs 19 and 20 of the amended statement of claim or at all. In the

alternative, if any duty of care was owed by the First Defendant to the Plaintiff (which is denied) the Defendants deny that the First Defendant has been guilty of any breach as alleged or at all. 18. The Defendants deny that the First Defendant was negligent as alleged in paragraphs 19 and 20 of the amended statement of claim or at all. 19. The Defendants deny that the Plaintiff has suffered loss and damage by reason of the matters pleaded in paragraph 20 of the amended statement of claim or otherwise. 20. The Defendants deny that the First Defendant is liable to the Plaintiff for any loss and damage (which loss and damage is denied) as alleged in paragraph 20 of the amended statement of claim or at all. 21. The Defendants deny that the Plaintiff is entitled to any of the relief sought as against the First Defendant in paragraph 22 of the amended statement of claim or the Second Defendants in paragraph 23 of the amended statement of claim or at all. 22. Alternatively, if the First Defendant was negligent as alleged, which is denied, and if the Plaintiff suffered loss and damage as alleged, which is denied, the Defendants say that the Plaintiff contributed by its own negligence to the aforesaid loss and damage. PARTICULARS OF CONTRIBUTORY NEGLIGENCE (a) Failing to disclose its identity adequately or at all to the First Defendant and/or to any of the Second Defendants. (b) Failing to give any and/or any adequate and/or any sufficiently temporarily proximate instructions to the First Defendant and/or to any of the Second Defendants as to how "the fund" should be used. (c) Failing to require confirmation of receipt for "the fund" from the First Defendant and/or any of the Second Defendants. (d) Remitting "the fund" in all or any of the aforesaid circumstances. (e) Failing to make any or adequate enquiry from the First Defendant and/or any of the Second Defendants about or concerning "the fund" until in or about May 1987. 23. Further and in addition to the foregoing, the Plaintiff's actions (liability in respect of which is denied) are not maintainable by virtue of sections 12, 13 and 33 of the Limitation Act 1981." 7. The amended defence of the third named second defendant is in similar terms. 8. The plaintiff's reply to the further amended defences of first defendant and first named second defendant and third named second defendant is in the following terms: "1. The plaintiff joins issue with the said defendants as to paragraph 22 of the said Further Amended Defences, and further says that the defendants were expecting to receive a telex confirming details from a confidential source of $AUD2,000,000 but, without receiving such telex, acted negligently as pleaded in paragraph 19 of the amended statement of claim. Particulars (a) By a telex dated 12.10.84 from the first named second defendant on behalf of the defendants to one Francis Lee, the first named second defendant requested details of remitting bank for $AUD2,000,000; (b) By a further telex dated 12.10.84 from the first named second defendant on behalf of the defendant to one Norman Wong, the first defendant requested details of remitting bank re $AUD2,300,000 which was due in Australia on 12 October 1984;

(c) By a telex dated 15.10.84 the said Norman Wong advised the first named second defendant that the source of the $AUD2,000,000 had been requested to send a confirmatory telex to the first named second defendant when the $AUD2,000,000 had been remitted. 2. The plaintiff joins issue with the said defendants as to paragraph 23 of the Further Amended Defences, and says that

its causes of action against the said defendants for breach of trust, for an account and for negligence accrued on a date on or after 30 March 1987 when the plaintiff asked the first defendant to repay the fund and repeats paragraph 14 of the Amended Statement of Claim. 3. Except to the extent that the said Further Amended Defences contain admissions, the plaintiff joins issue with the said defendants as to each and every allegation contained therein. 4. In further reply to paragraph 23 of the Further Amended Defences, the plaintiff says that, pursuant to Section 42(1) of the Limitations Act, 1981, the time elapsing prior to 2 February 1989 does not count in the reckoning of the limitation period for actions on the causes of action pleaded in the Statement of Claim herein as a result of such causes of action being fraudulently concealed from the plaintiff by the defendants within the meaning of that section. Particulars (a) By reason of the trust pleaded in paragraph 12 of the

Statement of Claim, the defendants owed duties to the plaintiff under the Legal Practitioners Act and otherwise, including duties to provide a receipt to the plaintiff, pursuant to Section 64, not to disburse any part of the monies the subject of the trust without direction from the plaintiff, pursuant to Section 59, and to account for all of the monies received from the plaintiff. (b) In breach of the said duties the defendants failed to provide a receipt to the plaintiff, disbursed the whole of the said monies without such a direction, and failed to account in respect of such monies or their disbursement.

(c) When requested on behalf of the plaintiff between 30 March 1987 and 2 February 1989 to provide an account of such monies received and to inform the plaintiff as to what had been done with such monies, the defendants refused and/or failed to provide such an account or to inform the plaintiff or its representatives of the following facts known to the defendants, namely - (i) the fact that all of the monies received from the plaintiff had been disbursed; (ii) the fact that all of such monies had been disbursed on dates prior to 2 November 1984; (iii) to whom such monies had been disbursed; (iv) upon whose directions to the defendants the monies had been disbursed; (v) the fact that Mr Clark was aware in October 1984 that the source of the monies was Datuk Hiew Min Yong; (vi) the fact that, without any inquiry by the defendants as to the source of the monies, or as to whether the source approved of the distribution thereof, the defendants had paid out such money at the direction of some other person. (d) The defendants knew or ought to have known, or ought to have made enquiry from its own bank, the National Australia Bank, as to the plaintiff being the remitter of the monies. (e) In the circumstances, the defendants fraudulently concealed the plaintiff's causes of action as pleaded in the Statement of Claim, within the meaning of Section 42(1) of the Limitation Act, until 2 February 1989. 5. In further reply to paragraph 23 of the Further Amended Defences, the plaintiff says that - (a) The said monies which the defendants received from the plaintiff were mixed, in the first defendant's trust account, with other funds amounting to $288,761.60. (b) If any of the said monies received from the plaintiff or any of the monies with which such monies were mixed was paid to or for the benefit of any of the defendants or to or for the benefit of any corporation in which any of the defendants had an interest (which matters are within the knowledge of the defendants, but cannot be particularised by the plaintiffs without the benefit of further discovery, interrogatories and production of documents on subpoena), the appropriate limitation period for this action is twelve years, pursuant to Section 32 of the Limitation Act." 9. The plaintiff's case is that on 17 October 1984, it paid or caused to be paid by telegraphic transfer $AUD2,000,000 into an account with National Australia Bank Ltd entitled 'trust account Clark and Partners'. The money or a substantial proportion thereof was withdrawn from the account on 18 October 1984 and 19 October 1984 by the defendant Geoffrey Robert Clark. The defendants put into issue the fact that the plaintiff was the remitter of the monies to National Australia Bank Ltd and that is a matter for proof if the case proceeds to trial. The defendants say that both at the time of remittance and at the time of withdrawal they did not know that the plaintiff was the remitter of the monies. The plaintiff asserts that at the time of withdrawal the defendant Clark knew the identity of the plaintiff as remitter. Whether the defendants had actual knowledge or not, it would seem the first defendant had imputed knowledge by its agent the bank: Australia and New Zealand Banking Group Ltd v Westpac Banking Group (1987-88) 164 CLR 662 at 674-675, 682. 10. In substance, the defendants' case is that the $AUD2,000,000 deposited into the trust account comprised a contribution towards a pool of money placed at the disposal of Burgundy Royale Investments Pty Ltd for the purposes of a substantial commercial development in Darwin. The defendants say Burgundy Royale Investments Pty Ltd had actual or ostensible authority to deal with the monies so deposited (including the money of the plaintiff) and that the defendants, with the authority of Burgundy Royale Investments Pty Ltd, withdrew and disbursed monies (including the money of the plaintiff) at the direction and with the actual or ostensible authority of Burgundy Royale Investments Pty Ltd. The defendants say that any action by the plaintiff to seek recovery of its $AUD2,000,000 from the defendants is ill-founded - the plaintiff's remedy, if any, lies elsewhere. 11. The substance of the litigation was apparently pinpointed in the course of the hearing. In the spirit of Lords Roskill (at 487, 488) and Templeman (at 493) in Ashmore v Corp of Lloyd's (1992) 2 All ER 486, I asked certain questions of Mr Hiley QC, senior counsel for the defendants. We had the following exchange: "HIS HONOUR: I mean, doesn't it really get down to this, that in all the circumstances, including the affairs of BRI, about which I have a very limited knowledge from just the information before me but no doubt will come out in trial, that expressly or impliedly BRI was clothed with authority by the remitter to deal with the funds in the project? MR HILEY: Yes. HIS HONOUR: Isn't that what this case all gets down to? MR HILEY: Yes, Your Honour. Yes. HIS HONOUR: And if the remitter didn't expressly or impliedly clothe BRI with that authority, assuming BRI was the one who gave the instructions for the dispersal, Clark

is liable or not liable as the case may be. MR HILEY: Yes. Yes. That's the case, Your Honour. HIS HONOUR: But that's an issue that's got to go to trial. I can't decide that. MR HILEY: I agree with that, with respect." 12. As can be seen from the statement of claim, the plaintiff seeks recovery of its money on a number of grounds. The statement of claim includes a claim in negligence, indicating once again the pervasive-and inappropriate-intrusion of Donoghue v Stevenson [1932] UKHL 100; (1932) AC 562 into the realm of equity. Senior counsel for the plaintiff said it was pleaded ex abundanti cautela, and these days, I suppose, one cannot altogether blame him for casting that line - but if the plaintiff's case as pleaded is to succeed at all it will do so in equity and there is no need to resort to the lure of common law negligence. I notice there is no plea of money had and received to the use of the plaintiff or money paid on a total failure of consideration or claim for common law restitution; see Lipkin Gorman v Karpnale Ltd (1991) 2 AC 548, especially at 565, 566 per Lord Templeman, 572-574 per Lord Goff of Chieveley, and Woolwich Equitable Building Society v IRC (1992) 3 WLR 366 at 385 F-H per Lord Goff of Chieveley, 415 A-C per Lord Browne-Wilkinson. 13. Where A pays money to a stranger B and there is no further evidence, there is no presumption of an obligation to re-pay: Heydon v Perpetual Executors, Trustees and Agency Co (WA) Ltd [1930] HCA 26; (1930) 45 CLR 111, Joaquin v Hall [1976] VicRp 84; (1976) VR 788. If, on the other hand, A pays money to a stranger B "upon trust" and there is no further evidence , there is a resulting trust back to A, and with it the equitable obligations consequent upon that conclusion. Here, the plaintiff says, it paid or caused to be paid money into a solicitors' trust account - an account so designated. Plainly, the solicitors were never intended to have and could not be seen to have had any beneficial interest in the money and in the absence of any evidence to the contrary, upon payment there was a resulting trust back to the remitter. As Mr Hiley QC frankly conceded in the course of the argument, apart from the issue as to whether the plaintiff was the remitter, the only other issue is whether the defendant Clark had authority to withdraw and disburse the monies as he did. 14. I should say that Mr Clark filed no affidavit in respect of the application before me, and to this day the true identity of the ultimate recipient or recipients of the $2,000,000 in question is yet to be satisfactorily identified. Nor, it appears, did the first defendant issue any receipt in respect of the $2,000,000. The plaintiff was never a client of the first defendant, but, by virtue of the combined operation of s55(2) and s64 of the Legal Practitioners Act 1983 (NT), it was incumbent upon the first defendant to issue a receipt. Section 55(2) of the Legal Practitioners Act provides: "Where a legal practitioner receives, in the course of his practice in the Territory, moneys from a person who is not a client of the legal practitioner on the condition that the moneys are to be held by the legal practitioner and are subsequently to be disbursed or otherwise dealt with by the legal practitioner in accordance with the directions of that person or another person, those moneys shall, for the purposes of this Ordinance, be deemed to be held by the legal practitioner in trust for that person as if that person were a client of the legal practitioner and this Part applies to and in relation to those moneys as if that person were a client of the legal practitioner." 15. Section 64 of the Legal Practitioners Act provides: "(1) A legal practitioner shall issue to a person from whom he receives trust money a receipt for the money specifying briefly the subject matter or purpose in respect of which the money was received. (2) A legal practitioner shall in the records referred to in section 63 keep particulars of each receipt issued by him." 16. In the circumstances of this matter, I am satisfied that the threshold requirement of s44(3)(b)(i) of the Limitation Act is satisfied. That section relevantly provides: "(3) ... section does not - ... (b) empower a court to extend a limitation period prescribed by this Act unless it is satisfied that - (1) facts material to the plaintiff's case were not ascertained by him until some time within 12 months before the expiration of the limitation period or occurring after the expiration of that period, and that the action was instituted within 12 months after the ascertainment of those facts by the plaintiff; or ..." 17. There are a number of facts material to the plaintiff's claims that were first ascertained by the plaintiff during the 12 month period prior to institution of the action, including the fact quantum and dates of the withdrawals of the monies which are said to constitute breaches of trust. There is no need to elaborate upon other material facts known to the defendants which eventually became known to the plaintiff, sufficient to satisfy the threshold requirement of s44. Sola Optical Australia Pty Ltd v Mills [1987] HCA 57; (1987) 163 CLR 628, Fersch v Power and Water Authority [1990] NTSC 30; (1990) 101 FLR 78, and Ward v Walton (1989) 66 NTR 20 satisfy me that the plaintiff, in the circumstances of this matter, is able to resort to s44 of the Limitation Act. 18. Pursuant to the overall discretion to grant an extension of time conferred by s44(3) of the Limitation Act, I have come to the conclusion that in all the circumstances of this case, it is just to grant an extension of time. 19. On or about 2 March 1987, the Malaysian solicitors for the plaintiff first instructed solicitors in Perth to act for the plaintiff. On or about 30 March 1987, the Perth solicitors wrote to Clark and Partners in the following terms: "The Manager,
30 March 1987 Clark and Partners, C/- Messrs Mildren Sylvester and Partners, 7th Floor, Darwin Plaza, 41 The Mall, DARWIN NT 5790 Dear Sir, Yamamori (HK) Limited We act on behalf of this company which is incorporated under

the laws of Hong Kong. We are instructed that on 17 October 1984 our client by way of telegraphic transfer deposited the sum of $2 000 000 in your trust account (No. 1334-2440) with the National Australia Bank Darwin. This sum was to be held on trust until such time as our client gave instructions for disbursing it. Our client now requires this sum to be returned and, accordingly, we request that you:

1. confirm that this sum is still held on trust for our client;
2. advise the details of interest which has accrued and is payable to our client; and
3. let us know when you will be in a position to return the funds to our client. We look forward to hearing from you at your earliest convenience. Yours faithfully, nn/254"
4. The defendants thus had notice of the plaintiff's claim within the expiration of three years after the withdrawals and disbursement of the monies. By letter dated 22 May 1987, the plaintiff's solicitors first formally demanded the return of the $AUD2,000,000. Clark and Partners did not assist as fully, as frankly or as quickly as might have been expected in resolving the questions that the plaintiff raised. As I have said, Mr Clark filed no affidavit explaining his position. In the circumstances of the correspondence exchanged between solicitors, one can understand the plaintiff not suing sooner. The identity of the remitter of the monies, if unknown to the defendants initially, might, it seems, readily have been obtained from the Bank, but it is unnecessary that I go further into that matter on the present application. It is not established that the defendant will suffer any relevant prejudice if an extension of time is granted. On the question of relevant prejudice, see particularly the well known South Australian cases, Ulowski v Miller (1968) SASR 277; Lovett v Le Gall (1975) 10 SASR 479; Napolitano v Coyle (1977) 15 SASR 559.
5. Senior counsel for the plaintiff argued a number of other matters which are not now necessary to canvass, though I would mention his argument concerning concealed fraud and s42 of the Limitation Act, which provides: "(1) Subject to sub-section (2), where

• (a) there is a cause of action based on fraud or deceit; or (b) a cause of action or the identity of a person against

whom a cause of action lies is fraudulently concealed, the time which elapses after a limitation period fixed by or under this Act for the cause of action commences to run, and before the date on which a person having, either solely or with other persons, the cause of action first discovers, or may with reasonable diligence discover, the fraud, deceit or concealment, as the case may be, does not count in the reckoning of the limitation period for an action on the cause of action by him or by a person claiming through him against a person answerable for fraud, deceit or concealment. (2) Sub-section (1) has effect whether the limitation period for the cause of action would, but for that sub-section, expire before or after the date referred to in that sub-section. (3) For the purposes of sub-section (1), a person is answerable for fraud, deceit or concealment if, but only if - (a) he is a party to the fraud, deceit or concealment; or (b) he is, in relation to the cause of action, a successor of a party to the fraud, deceit or concealment under a devolution from the party occurring after the date on which the fraud, deceit or concealment first occurred. (4) Where property is, after the first occurrence of fraud, deceit or concealment, purchased for valuable consideration by a person who is not a party to the fraud, deceit or concealment and does not, at the time of the purchase, know or have reason to believe that the fraud, deceit or concealment has occurred, sub-section (1) does not apply to postpone the commencement of the limitation period fixed by or under this Act in respect of the right to bring an action against the purchaser or a person claiming through him." 22. Counsel submitted that upon receipt of the monies into its trust account, the first defendant was obliged to issue a receipt to the remitter, and that its failure to issue a receipt constituted non- disclosure such as to amount to equitable fraud. Such, it was submitted, was fraudulent concealment for the purposes of s42 of the Limitation Act. I was referred to the English line of decisions: Beaman v A.R.T.S., Ltd (1949) 1 K B 550 through to Tito v Waddell (No. 2) (1977) Ch 106 at 245. I was also referred to the decision of Mahon J in Inca Ltd v Autoscript (New Zealand) Ltd (1979) 2 NZLR 700, where the English authorities are discussed and criticised. There is in addition the decision of McLelland J in Hamilton v Kaljo (1989) 17 NSWLR 381, where after a review of the authorities, he concluded (at 386) that there must be some form of dishonesty or moral turpitude shown in order to rely on the New South Wales equivalent to s42. As presently advised, I am unable to see how the first defendant's failure to issue a receipt, without more, enables the plaintiff to employ s42 of the Limitation Act. But, having concluded that an extension of time should be granted to the plaintiff, it is not necessary for me to make any findings or come to any conclusion in respect of these matters in the present case. 23. For the reasons given earlier, there should be orders granting leave to the plaintiff to amend the endorsement on the writ and extending time as sought by the plaintiff. The first defendant's application for summary judgment should be dismissed. I will hear the parties as to the terms of the orders and as to any consequential directions and as to costs and generally.