Fistar v Riverwood Legion and Community Club Ltd

(2016) 91 NSWLR 732; [2016] NSWCA 81

NSW Court of Appeal

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Interrogate

Catchwords

1. Equity
2. › Fraud
3. › Stolen money
4. › Trust imposed on stolen property
5. › Black v Freedman trust
6. › Overlapping claims at common law and in equity against recipients of stolen property
7. › Whether personal claim for money had and received 'outflanks' first limb of Barnes v Addy
8. › Whether restitution-based liability co-exists with Barnes v Addy liability
1. Restitution
2. › Money had and received
3. › Availability against recipient of stolen funds
4. › Whether recipient was a volunteer
5. › Creditor paid with misappropriated funds
6. › Whether payment in discharge of existing debt precludes characterisation as volunteer
7. › Whether claim confined to direct recipient
1. Equity
2. › Constructive trusts
3. › Barnes v Addy
4. › First limb — knowing receipt
5. › Relationship with common law claims
6. › Whether first limb of Barnes v Addy occupies the field to exclusion of common law claims
1. Equity
2. › Tracing
3. › Equitable tracing into hands of third party
4. › Whether indirect recipient liable
5. › Whether tracing principles stop after property passes through one person's ownership

Quick Take

Practitioners pursuing claims against third-party recipients of stolen or misappropriated funds should note that a creditor who receives payment of an existing debt using misappropriated funds, without knowledge of the misappropriation, is not a volunteer and cannot be liable for money had and received; the co-existence of common law restitutionary claims with Barnes v Addy equitable claims is confirmed.