Aust Café Pty Ltd v Thushara de Soysa & Ors  VCC 237 (15 March 2019) Judge A. Ryan.
The facts were –
- The second defendant was at all material times the registered proprietor of a property, mortgaged to the ANZ Bank from 2006 to 24 August 2016 and thereafter to Westpac.
- The plaintiff operated a café where it employed the first defendant as a floor manager and, from August 2009 to February 2014, his then wife the second defendant as a food server. The third defendant, now married to the first defendant, was also employed there.
- According to the third defendant’s bank-statements between 29 November 2012 and 30 December 2013 $32,400 was transferred from her to the second defendant by regular payments of $600, said to represent spousal maintenance by the first defendant to the second defendant.
- There was also evidence that between 22 February 2013 and 8 January 2014 payments of $600 were regularly made into the second defendant’s home loan account.
- The plaintiff plead or affidavits filed on its behalf deposed that –
- The first and second defendant had misappropriated moneys by undervaluing customer transactions, and the first defendant retained the extent of the undervaluation and distributed part of it to the second defendant;
- The second defendant applied some of this money to pay off her mortgage;
- She had admitted the misappropriation to a private detective retained by the plaintiff.
- The second defendant plead or deposed –
- that she had not stolen from the plaintiff but was instructed by its director to record large cash sales as low cash sales, because he did not want a high valuation of the business for Family Law purposes;
- that the cash registers were cleared every 15 minutes and there was CCTV surveillance;
- that the alleged admissions were inadmissible;
- The plaintiff caveated over the property claiming a freehold estate on the grounds of “Implied, Resulting or Constructive Trust”.
- The second defendant applied under the TLA s. 90(3) for removal of the caveat.
Judge Ryan held:
- A person who misappropriates funds held them from the time of receipt on constructive trust for the defrauded party. , , -
- Where those trust funds were used exclusively to acquire property, so long as the trust property could be traced and followed into other property into which it has been converted, that property remained subject to the trust. Further, equitable rights were not lost by the mere fact that the misappropriated funds were mixed with other funds. 
- The beneficiary may claim a charge over the acquired property to the value of the
misappropriated funds. 
- Where the thief gave the funds to a volunteer recipient that recipient came under an equitable obligation once it had notice of the theft. 
- There were serious questions to be tried about: whether the second defendant colluded with the first defendant to defraud the plaintiff; whether she received stolen moneys via the third defendant; whether any stolen moneys were applied towards her mortgage repayments. There was accordingly a serious question to be tried that the plaintiff had the interest in the property which it claimed. , 
- The balance of convenience favoured the plaintiff: the second defendant did not point to any current prejudice in dealing with her property beyond general disadvantage. The course which appeared to carry the lowest risk of injustice favoured maintenance of the caveat. 
- The second defendant was ordered to pay the costs of the application. 
Comment: This is a relatively unusual type of case. For completeness a longer list, taken from the author’s Leo Cussen Paper on caveats in July 2017, and including a case cited by her Honour, is –
“Constructive trusts imposed following breach of fiduciary duty or trust. Examples are: Dennis Hanger Pty Ltd v Brown,  VSC 495 – a company maintained a caveat over a former employee’s land, he having used forged company cheques to make mortgage repayments; George v Biztole Corporation Pty Ltd, 26 February 1996, Ashley J – a caveat was maintainable where the alleged misappropriation was applied in making improvements to land already owned by the defaulting fiduciary; Dharmalingham v Registrar of Titles  VSC 417 – a wife maintained a caveat over land given by her husband to his sister, on the grounds of “matrimonial property of caveator and husband fraudulently transferred to husband’s sister”. In Somerville v Nufarm Australia Ltd  VSC 520 a caveat based on an alleged constructive trust over land of the wife of a former employee, who had gambled with his employer’s funds and paid proceeds to her, failed on the ground of no serious question whether the wife had active or constructive knowledge of her husband’s wrongdoing”.