The Court held that a liquidator seeking payment out of funds held in court on the basis of a constructive trust arising from breach of fiduciary duty must positively prove the breach on the balance of probabilities, and cannot rely merely on the absence of records such as loan agreements or board approvals where no evidence was adduced to establish that such documents did not exist. Consistent with Kalls Enterprises and Sirrah, the making of loans by a company to a director for personal purposes does not of itself constitute a breach of fiduciary duty, and where untested but not implausible evidence suggested the advances were repayments of prior loans by the director to the company, the liquidator's evidentiary burden was not discharged. The funds were accordingly ordered paid to the trustee in bankruptcy.
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