Pollicino v Pollicino

(2000) 48 NSWLR 498; [2000] NSWCA 4

NSW Court of Appeal

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Interrogate

Catchwords

1. Equity
2. › Trusts
3. › Constructive trust
4. › Breach of fiduciary duty
5. › Misrepresentation inducing transfer of property to family trust
6. › Whether beneficiary entitled to proportionate interest in later-acquired trust properties
1. Equity
2. › Trusts
3. › Tracing
4. › Trust property used as security for loans
5. › Rental income applied to acquire further properties
6. › Whether tracing order available where rents already credited to beneficiary
7. › Double recovery
1. Equity
2. › Trusts
3. › Accounts and enquiries
4. › Just allowances
5. › Master's certificate
6. › Further consideration by judge
7. › Discretionary refusal of further relief
1. Practice and Procedure
2. › Appeals
3. › New claims on appeal
4. › Relief sought on appeal differs from that sought at trial
5. › Whether reformulated claim permissible

Quick Take

A beneficiary who has been credited with rental income from trust properties (with interest) cannot also claim a proprietary tracing interest in properties acquired using those rents, as this constitutes double recovery. Where a trial judge has rejected a constructive trust over certain properties and no appeal is brought, that finding cannot be revisited on further consideration after accounts and enquiries. A claim for relief based on a proportionate interest approach (percentage of contribution to original trust assets) may be properly refused where the accounting is too complex and too many other factors are involved.