Barclay v Penberthy and Ors

[2012] HCATrans 279

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P55 of 2011

B e t w e e n -
AARON BARCLAY
Appellant
and
ALEC PENBERTHY
First Respondent
FUGRO SPATIAL SOLUTIONS PTY LTD ACN 008 673 916
Second Respondent
NAUTRONIX (HOLDINGS) PTY LTD ACN 009 067 099 AND L‑3 COMMUNICATIONS NAUTRONIX LTD ACN 009 019 603
Third Respondents
MALCOLM ANTHONY CIFUENTES
Fourth Respondent
MICHAEL BRIAN KNUBLEY
Fifth Respondent
JULIE ANNE WARRINER
Sixth Respondent
JANET GRAHAM
Seventh Respondent
OZAN PERINCEK
Eighth Respondent

Office of the Registry
Perth No P57 of 2011

B e t w e e n -
ALEC PENBERTHY
First Appellant
FUGRO SPATIAL SOLUTIONS PTY LTD ACN 008 673 916
Second Appellant
and
AARON BARCLAY
First Respondent
NAUTRONIX (HOLDINGS) PTY LTD ACN 009 067 099 AND L‑3 COMMUNICATIONS NAUTRONIX LTD ACN 009 019 603
Second Respondents
MALCOLM ANTHONY CIFUENTES
Third Respondent
MICHAEL BRIAN KNUBLEY
Fourth Respondent
JULIE ANNE WARRINER
Fifth Respondent
JANET GRAHAM
Sixth Respondent
OZAN PERINCEK
Seventh Respondent
Pronouncement of orders

FRENCH CJ
HAYNE J
CRENNAN J
KIEFEL J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 7 NOVEMBER 2012, AT 10.21 AM

FRENCH CJ: These proceedings were heard on 1 May this year by a Court constituted by Justices Gummow, Hayne, Heydon, Crennan, Kiefel, Bell and myself. On 2 October this year the Court dismissed each appeal subject to the making of consequential orders finally disposing of the appeals. Pursuant to order 4 of the orders made by this Court on 2 October, the parties have brought in agreed draft orders finally disposing of the appeals.

The order of the Court is:

In matter No. P55 of 2011:

1. Appeal dismissed.
2.Special leave be granted to the third respondents to cross‑appeal, the cross‑appeal be treated as instituted and heard instanter and dismissed.

3.The appellant pay the costs of the third respondents of the appeal, and the third respondents pay the costs of the appellant of the cross‑appeal, the costs to be set off.

4.Vary paragraph 2.1 of the orders of the Court of Appeal of the Supreme Court of Western Australia made on 10 June 2011 by adding to the start of that subparagraph the words:

“save that the first and third defendants only are liable for, and do pay to the sixth plaintiffs, damages for economic loss occasioned by the third defendant’s breach of duty of care owed to the sixth plaintiffs (in so far as the sixth plaintiffs do not have an entitlement to any part of those damages as against the first, second and third defendants pursuant to its action per quod servitium amisit),”.

5.Vary paragraph 3 of the orders of the Court of Appeal of the Supreme Court of Western Australia made on 10 June 2011 by adding to the start of that subparagraph the words:

“Save that the first and third defendants only are liable to the sixth plaintiffs for damages for economic loss occasioned by the third defendant’s breach of duty of care owed to the sixth plaintiffs and for costs payable to the sixth plaintiffs referable to that claim (in so far as the sixth plaintiffs do not have an entitlement to any part of those damages as against the first, second and third defendants pursuant to its action per quod servitium amisit), that”.

In matter No. P57 of 2011:

1. Appeal dismissed.
2.Special leave be granted to the second respondents to cross‑appeal, the cross‑appeal be treated as instituted and heard instanter and dismissed.

3.The appellant pay the costs of the second respondents of the appeal, and the second respondents pay the costs of the appellant of the cross‑appeal, the costs to be set off.

4.Vary paragraph 2.1 of the orders of the Court of Appeal of the Supreme Court of Western Australia made on 10 June 2011 by adding to the start of that subparagraph the words:

“save that the first and third defendants only are liable for, and do pay to the sixth plaintiffs, damages for economic loss occasioned by the third defendant’s breach of duty of care owed to the sixth plaintiffs (in so far as the sixth plaintiffs do not have an entitlement to any part of those damages as against the first, second and third defendants pursuant to its action per quod servitium amisit),”.

5.Vary paragraph 3 of the orders of the Court of Appeal of the Supreme Court of Western Australia made on 10 June 2011 by adding to the start of that subparagraph the words:

“Save that the first and third defendants only are liable to the sixth plaintiffs for damages for economic loss occasioned by the third defendant’s breach of duty of care owed to the sixth plaintiffs and for costs payable to the sixth plaintiffs referable to that claim (in so far as the sixth plaintiffs do not have an entitlement to any part of those damages as against the first, second and third defendants pursuant to its action per quod servitium amisit), that”.

I publish that order.

AT 10.24 AM THE MATTER WAS CONCLUDED

The High Court of Australia considered an appeal from the Supreme Court of Queensland in a dispute concerning the ownership of shares in a company. The appellant, Mr. Barclay, alleged that he was entitled to a beneficial interest in shares held by the respondents, Mr. and Mrs. Penberthy, and their associated entities. The core of the dispute revolved around whether the Penberthys held these shares on trust for Mr. Barclay, or whether they were beneficially owned by the Penberthys themselves.

The High Court was required to determine whether the evidence established a resulting trust over the shares in favour of Mr. Barclay. Specifically, the Court had to assess whether the contributions made by Mr. Barclay towards the acquisition of the shares were intended by the parties to be gifts, or whether they were made with the expectation of a beneficial interest in return. This involved an examination of the parties' intentions at the time the shares were acquired and the nature of the financial transactions that occurred.

The Court analysed the principles governing resulting trusts, particularly in the context of contributions to property. It was held that a resulting trust arises where a person makes a contribution to the purchase of property which is then vested in another. However, this presumption can be rebutted by evidence of a contrary intention, such as a gift or a loan. The High Court found that the evidence did not support the existence of a resulting trust, concluding that Mr. Barclay's contributions were intended as gifts to the Penberthys. The Court therefore dismissed the appeal.

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