Emerald Shores Limited (in liquidation) v Cameron [2015] NZHC 2103 (1 September 2015)

Last Updated: 23 September 2015

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV-2014-419-499 [2015] NZHC 2103

BETWEEN	EMERALD SHORES LIMITED (IN LIQUIDATION) Plaintiff
AND	PETER JOHN CAMERON First Defendant EMERALD SHORES 2011 LIMITED Second Defendant

Hearing:	24 August 2015
Appearances:	M S King and H D Enright for Plaintiff No appearance for First and Second Defendants
Judgment:	1 September 2015

_{JUDGMENT OF WHATA J}

This judgment was delivered by me on 1 September 2015 at 4pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:

Sharp Tudhope, Tauranga

EMERALD SHORES LTD (IN LIQ) v CAMERON [2015] NZHC 2103 [1 September 2015]

[1] Emerald Shores Ltd (in liquidation) (“Emerald Shores”) claims in short, that Mr Cameron breached his fiduciary duties as a director of Emerald Shores when he transferred a number of properties owned by Emerald Shores to a separate company of which he was the sole director and shareholder. Mr Cameron is now bankrupt, and has not filed a statement of defence to the claim. Emerald Shores, therefore, seeks judgment against Mr Cameron seeking a number of orders, the effect of which is to return the proceeds of sale of the properties and the remaining properties to Emerald Shores.

Facts

[2] Kenneth Peter Brown, a liquidator, has filed a detailed affidavit describing the background events underlying the statement of claim. The contents of that affidavit verify the allegations contained within the statement of claim. I have no reason to doubt its accuracy or Mr Brown’s veracity. I therefore essentially adopt his narrative of events for the purposes of this judgment.

[3] On or around November 2001, Mr Cameron approached Mr Hubbard about purchasing two blocks of land in Papamoa for $1.75 million for the purpose of developing the land into a residential subdivision (the “Subdivision”). Emerald Shores was intended to be a joint venture to give effect to this Subdivision, with South Canterbury Finance (“SCF”) (associated with Mr Hubbard) having a 60 per cent interest and Mr Cameron 40 per cent. The initial shareholder was Strathallan Nominee Company Ltd. Mr Cameron was responsible for getting on with the subdivision, approving development costs and forwarding them to Mr Hubbard for payment. Mr Cameron was also responsible for sales. Mr Hubbard looked after the financing arrangements and its bookkeeping.

[4] The development of the Subdivision proceeded in stages. Emerald Shores initially obtained finance from SCF, but SCF did not secure the debt against the Subdivision. In any event, on or around 26 November 2001 and 10 December 2001, Emerald Shores purchased the Subdivision from Papamoa Developments Limited in two lots: one for $350,000 and one for $1,400,000. In June 2007 further finance in the sum of $4.8 million was obtained by Emerald Shores from Aorangi Securities

Limited (“Aorangi”), a company associated with Mr Hubbard. Aorangi also did not secure the debt against the Subdivision. Emerald Shores then paid SCF $4.71 million.

[5] Emerald Shores’ financial statements for the periods ending 30 June 2007 and

30 June 2008 reveal increasing indebtedness to Aorangi with a corresponding reduction in indebtedness to SCF, so that by 30 June 2008 the draft records showed record that:

(a) As at 30 June 2008, Emerald Shores owed Aorangi

$5,356,000; and

(b) As at 30 June 2008, Emerald Shores owed South Canterbury

Group $316,000.

[6] Emerald Shores’ financial statements for the year ended 30 June 2009 then record that Emerald Shores’ owed Aorangi $6,267,215 and Mr Hubbard $316,000.

[7] The sale of the sections proceeded as each stage was advanced. By 30 April

2010, only 18 sections remained in the Subdivision. But from on or around 13 June

2010, Emerald Shores ceased making interest or principal payments to Aorangi. Around this time, Aorangi and Mr and Mrs Hubbard were placed into statutory management. Emerald Shores’ draft financial statements for the year ended 30 June

2010 record that it owed Aorangi $2,481,882 and Mr Hubbard $3,850,430.

Aorangi’s ledger also records the same indebtedness.

[8] It appears that from no later than 30 June 2010, Emerald Shores was

insolvent. Emerald Shores’ draft financial statements for the year ended 30 June

2010 show that on a balance sheet test it is insolvent, its liabilities exceeding its assets.¹

[9] On or around 24 September 2010, Mr Cameron was appointed a director of

Emerald Shores, and in November that year Mr Cameron arranged further finance for Emerald Shores from Basecorp Finance, which was secured by a mortgage over

¹ The High Court in Aorangi Securities Ltd (in statutory management) v Emerald Shores Ltd

[2012] NZHC 1491 also held at [81] – [82] that Emerald Shores was insolvent as at 30 June

2010, on the balance sheet test.

the remaining sections in the Subdivision, with a priority amount of $1,000,000 plus interest.

[10] On or around 22 June 2011, Aorangi’s statutory managers and Mr and Mrs Hubbard issued a letter of demand to Emerald Shores requesting repayment of loans totalling $6,332,311.62. This letter was addressed to Mr Cameron. This was followed by a statutory demand on 26 July 2011 in the amount of $2,481,881.62. Emerald Shores failed to meet the statutory demand.

[11] Meanwhile on 1 August 2011, Basecorp issued a notice under section 122

Property Law Act 2007 to Mr Cameron, to recover unpaid mortgage payments owing. Mr Cameron then took steps to try and refinance the Basecorp mortgage and on 16 August 2011, ASAP Finance Limited (“ASAP Finance”) offered to lend

$1,161,568 to Emerald Shores to assist in refinance of the mortgaged sections.

[12] With Mr Hubbard’s passing on 2 September 2011, Mr Cameron became the sole director of Emerald Shores. Later that month, he informed Aorangi that Emerald Shores intended to prepare a sell down programme for the properties within the Subdivision to third parties which he intended to approach. He sought further time to do this. At that time the remaining properties were valued at $4,305,000 (the “Valuation”).

[13] In October 2011 Mr Cameron caused Emerald Shores 2011 Ltd (“ESL2011”) to be incorporated, and Emerald Shores to enter into a series of transactions to give effect to the sale to ESL2011 of 17 of its 18 sections within the Subdivision for the sum of $3,720,000 (the “Land Transfer Transaction”) and the refinancing of mortgages over the affected properties. This included a vendor finance agreement with ESL2011 (the “Loan Agreement”). The Loan Agreement was signed by Mr Cameron as director of Emerald Shores and ESL2011. The Loan Agreement provided, among other things, as follows:

(a) The amount of the loan was $2.6 million;

(b) The purpose of the loan is to “finance balance purchase”;

(c) ESL2011 was not required to make any repayment until 5

October 2014, the date at which the principal amount was due to be repaid in full;

(d) The interest rate was NIL;

(e) ESL2011 agreed to grant Emerald Shores an “all obligations first ranking charge on the ADLS form for PPSR and the Memorandum of General Terms and Conditions attached over the assets of ESL2011”;

(f) Clause 17 states:

“Discount for Bulk Sale

The Lender acknowledges that the transaction creating the borrowing has been undertaken at the request of the new first mortgage charge financier and is based upon a registered valuation of $3,720,000. However, the parties also acknowledge that the valuer advised in her valuation that the values did not hold for a bulk sale (which in fact occurred) and as a result the purchase price should have been reduced by 35-40%. The Lender and the Borrower agree that if the Borrower has to proceed to sell down the sections as a bulk sale and not individually then this loan will have written off from the principal sum an amount of

$1,500,000.”

[14] The Land Transfer Transaction settled and the properties were transferred to

ESL2011. Emerald Shores’ mortgages 8633950.1, 883282.1, 8666063.1 and

8608781.1 to Basecorp were discharged following repayment of $1,086,599.30. They were replaced with mortgages to ASAP Finance simultaneously with the transfer to ESL2011. But ESL2011 did not grant Emerald Shores an all obligations first ranking charge as required under the Loan Agreement. Furthermore, there was no evidence of shareholder approval of the Land Transfer Transaction under section

129 of the Companies Act 1993, and Mr Cameron did not declare the Land Transfer

Transaction in Emerald Shores’ interests register.

[15] On 5 October 2011, Lot 58 was transferred from Emerald Shores to a third party with the result that Emerald Shores no longer owned any properties within the Subdivision. This, together with the Land Transfer transaction, resulted in Emerald Shores disposing of all its assets that had been valued at $5,625,000 as at 30 June

2011.

[16] Aorangi subsequently discovered the properties had been transferred and made enquiries of Mr Cameron. An email from Mr Cameron dated 16 October 2011 to the statutory managers that states, among other things:

“Various options were looked at based on advise[sic] I received to avoid shifting the assets however the above was the only option that ASAP would entertain.

Emerald Shores Ltd will still realise the same Nett values for the

assets as if titles were still held in Emerald Shores [sic] name.”

[17] On or around 25 October 2011, Mr Cameron caused Emerald Shores to grant a General Security Agreement (the “GSA”) to Cameron International Ltd (“CIL”). Mr Cameron and his wife, Margaret Joyce Cameron are CIL’s only directors and shareholders. Mr Cameron signed the GSA on behalf of Emerald Shores.

[18] In November 2011, ESL2011 accepted a loan offer from Wroxton Finance

Limited (“Wroxton”) and Curzon Capital Limited (“Curzon”) to borrow:

(a) $1.45 million principal;

(b) Plus $167,785 of capitalised interest; (c) Plus $45,635 of lender’s fees;

(d) Plus $13,400 of brokerage fees.

[19] The mortgages on the properties to ASAP Finance Limited were then discharged and replaced with mortgages in favour of Wroxton and Curzon.

[20] On or around 28 June 2012, Emerald Shores was placed into liquidation by order of the court. Meanwhile, in early July 2012, ESL 2011 sold two lots (62 and

66), valued at $185,000 and $495,000, to third parties. On or around 19 July 2012, Emerald Shores placed caveat 9128086.1 over 10 of the Properties, namely lots 60,

65, 66, 68, 69, 70, 77, 78, 79 and 81. CIL responded, it appears, by appointing Kim Scott Thompson as a receiver of Emerald Shores in respect of the GSA. This in turn was subsequently met with an application by Emerald Shores’ liquidators in late October to set aside the GSA and terminate the appointment of Mr Thompson as the receiver under s 299 of the Companies Act 1993 and s 35 Receiverships Act 1993 respectively (the “Application”). Complicating matters still further, Wroxton and

Curzon issued a notice in December, under section 119 Property Law Act 2007, against ESL2011 seeking repayment of $1,256,812.83.

[21] On or around 1 March 2013, Mr Thompson gave notice of ceasing to act as receiver and manager pursuant to s 29 Receiverships Act 1993 and on 13 March

2013, Emerald Shores placed caveat 9338975.1 over the remaining five properties, namely lots 64, 72, 73, 74 and 75. In May 2013, the parties settled the Application, the GSA was released and the liquidators resumed acting in the liquidation of Emerald Shores. With ESL2011’s consent, the proceeds of sale of the properties after Wroxton and Curzon were repaid in full, were to be held in Sharp Tudhope’s trust account pending further agreement between the parties or further order of the Court. As at 7 April 2015, 14 of the remaining 15 properties have sold. This is evident from the title searches. Wroxton and Curzon have been repaid in full. As at 7

April 2015, Sharp Tudhope Lawyers holds $552,022.23 in their trust account from the sales of the Properties and ESL2011 owns one Property, namely Lot 67.

The pleadings

[22] The pleadings did not refer to director’s statutory duties recorded at ss 131 –

134 and 139 - 144 of the Companies Act 1993. I raised this with Mr King for the plaintiffs to see whether it might be necessary and or useful to amend the pleadings to capture breach of these duties. After hearing from Mr King I am happy to adopt his submissions with the result that that amended pleadings are not necessary. First, the core duty to “act in good faith and in the best interests of the Emerald Shores” was pleaded so in substance the breach of the equivalent s 131 duty is before the

Court.² Second, the Companies Act is not an exclusive remedial code for breach of a

director’s fiduciary duties.³ Third, there is no meaningful prejudice to the first defendant who has not defended the proceedings.⁴

[23] One residual matter, quite properly raised by Mr King, concerns whether s

141 precludes a breach of fiduciary duty claim and correlated proprietary remedy. That section states:

² _{See Sojourner v Robb [2006] 3 NZLR 808 (HC).}

³ _{See Benton v Priore [2003] 1 NZLR 564 (HC) at [53].}

⁴ See Holmes v Kiriwai Consultants Ltd [2015] NZCA 149 at [31], [74] and [79].

(1) A transaction entered into by the company in which a director of the company is interested may be avoided by the company at any time before the expiration of 3 months after the transaction is disclosed to all the shareholders (whether by means of the company’s annual report or otherwise).

(2) A transaction cannot be avoided if the company receives fair value under it.

(3) For the purposes of subsection (2), the question whether a company receives fair value under a transaction is to be determined on the basis of the information known to the company and to the interested director at the time the transaction is entered into.

(4) If a transaction is entered into by the company in the ordinary course of its business and on usual terms and conditions, the company is presumed to receive fair value under the transaction.

(5) For the purposes of this section,—

(a) a person seeking to uphold a transaction and who knew or ought to have known of the director’s interest at the time the transaction was entered into has the onus of establishing fair value; and

(b) in any other case, the company has the onus of establishing that it did not receive fair value.

(6) A transaction in which a director is interested can only be avoided on the ground of the director’s interest in accordance with this section or the company’s constitution.

[24] The salient issue is whether this subsection effectively operates as a bar to alternative remedies based on a breach of fiduciary duty, where the breach is based on a transaction in which the director is “interested”, at undervalue. I think the short answer is that s 141 provides a statutory remedy to enable transactions to be avoided, that is only available if the statutory criteria is satisfied, including the three month limitation period and the absence of fair value. It does not expressly purport to be an exclusive remedy for breach of fiduciary duty and I see no reason imply such a fetter. It will also be observed that the mechanics of the relief available for breach of fiduciary duty does not involve avoiding the relevant transaction, but rather provides a remedy for the harm done to the company caused by the breach.

Jurisdiction

[25] Given that no defence has been filed, this matter falls to be resolved by way of formal proof. In accordance with Rule 15.9:

(4) The plaintiff must, before or at the formal proof hearing, file affidavit evidence establishing, to a Judge’s satisfaction, each cause of action relied on and if damages are sought, providing sufficient information to enable the Judge to calculate and fix the damages.

(5) The Judge before or at a formal proof hearing considers that any deponent of an affidavit file by subclause (4) should attend to give additional evidence, the Judge may direct accordingly and adjourn the hearing for that purpose.

[26] As noted, I have the affidavit of Kenneth Peter Brown and I have no reason to doubt his narrative of events.

Argument for the plaintiff

[27] Mr King submitted that Mr Cameron owed a fiduciary duty to Emerald

Shores and that he had breached that duty in the following ways (in summary):

(a) Mr Cameron allowed Emerald Shores to incur more mortgage debt while insolvent.

(b) Mr Cameron sold Emerald Shore’s properties to entities controlled by himself using vendor finance, without providing adequate security and in the face of a statutory demand by Aoraki.

(c) Mr Cameron hived down Emerald Shores’ assets to himself, replacing those assets with the repayment of the loan to Basecorp and an unsecured loan to ESL2011.

(d) Mr Cameron knew or ought to have known that ESL2011 would be unable to repay the vendor finance.Mr Cameron rendered Emerald Shores unable to make payment in reduction of its debts from the moment of the land transfer transactions.

(e) Mr Cameron failed to obtain shareholder approval of the land transfer transaction as a major transaction under s 129 of the Companies Act, and failed to declare the land transfer transactions in Emerald Shores’ interests register.

(f) Mr Cameron then allowed ESL2011 to refinance with Wroxton and Curzon and increasing the borrowings mortgaged against the properties, with the effect of preventing Emerald Shores from displacing its own mortgages.

(g) Mr Cameron effected the GSA on behalf of Emerald Shores, in favour of CIL, at a time when he knew or ought to have known that Emerald Shores was insolvent.

[28] Mr King submits that, as a result of the above breaches, Emerald Shores lost legal ownership or rights over the properties and the value attributed to that loss is at least $2.6 million.

[29] In relation to the second cause of action based on knowing receipt, Mr King submits that Mr Cameron in breach of his fiduciary duty obtained a benefit from that breach with knowledge of it. Mr King relies on the abovementioned alleged breaches of fiduciary duty and as to benefit, he refers to the following:

(a) Legal title to the properties free from the burden of the creditors left behind in Emerald Shores.

(b) An interest free loan for three years to fund the $2.6 million purchase price.

(c) The ability to use the properties as security for finance from ASAP Finance then Wroxton and Curzon.

(d) The opportunity to sell the properties and obtain a profit from them.

[30] He also submits that ESL2011 must have had the requisite knowledge for a claim in knowing receipt given that Mr Cameron is a director of ESL2011. He submits that knowledge includes actual knowledge, wilfully shutting one’s eyes to the obvious and wilfully and recklessly failing to make such inquiries as an honest and reasonable man would make.

[31] As to remedies, he submits that Emerald Shores has an equitable proprietary interest in the properties and is entitled to follow them and/or trace their value.

Assessment

[32] The central claim made by the plaintiff is that Mr Cameron breached his fiduciary duties as a director to the company when he transferred the company’s properties to a company controlled by him. Mr King aptly referred to in Equiticorp Industries Group Ltd (In Statutory Management) v Attorney-General (No 47) which expressed Mr Cameron’s obligations in the following way: ⁵

It is, of course, trite law that directors are effectively trustees of the company’s assets and owe duties of good faith, not only to the company and its shareholders, but also to its creditors. The obligation to creditors is especially important when the company is facing financial difficulties – see Australian Growth Resources Corporation Pty Ltd (Recs and Mgrs apptd) v van Reesema (1988) 13 ACLR 261 at pp 268 to 271.

[33] The facts of this case reveal the sale of Emerald Shore properties by Mr Cameron in his capacity as a director to an entity, ESL2011, also controlled by Mr Cameron. Contrary to the contracts of sale and vendor finance, Mr Cameron did not provide security over the properties in favour of Emerald Shore, and instead obtained finance in respect of those properties in favour of ESL 2011. The properties were then sold and the proceeds used, among other things, to pay down ESL’s debt. Compounding matters, Emerald Shores was insolvent at the time and subject to statutory demand from Aoraki, who were not informed of the transfer until after the sale and purchase was completed.

[34] For my part, this train of events evinces a clear breach of fiduciary duty by a director. Mr Cameron acquired company property for less than (if any) fair value and for personal gain, albeit via another company. He then left the Emerald Shore in a parlous state and deprived its creditors of the only available security. The only possible defence to such a breach was that Mr Cameron could think of no other way of obtaining finance to keep the company afloat. But the answer to this (possible)

_{defence lies in the seminal decision dealing with breach of fiduciary duty by a}

⁵ Equiticorp Industries Group Ltd (In Statutory Management) v Attorney-General [1998] 2 NZLR

481 (HC) at 549.

director, Regal (Hastings) Ltd v Gulliver.⁶ Lord Porter responded to a similar proposition in this way:⁷

In these circumstances, it is to my mind immaterial that the directors saw no way of raising the money save from amongst themselves and from the solicitor to the company, or, indeed, that the money could in fact have been raised in no other way. The legal proposition may, I think, be broadly stated by saying that one occupying a position of trust must not make a profit which he can acquire only by use of his fiduciary position, or, if he does, he must account for the profit so made. For this proposition the cases of Keech v Sandford and Ex parte James are sufficient authority.(footnotes omitted)

[35] And further:⁸

... Directors, no doubt, are not trustees, but they occupy a fiduciary position towards the company whose board they form. Their liability in this respect does not depend upon breach of duty but upon the proposition that a director must not make a profit out of property acquired by reason of his relationship to the company of which he is director. It matters not that he could not have acquired the property for the company itself — the profit which he makes is the company's, even though the property by means of which he made it was not and could not have been acquired on its behalf.

[36] A corollary of this is that the proceeds of sale (except the sum paid to Wroxton and Curzon⁹), and the properties still in the possession of ESL2011 must be recoverable by Emerald Shores.

[37] Given this finding it is unnecessary to explore in detail the claim based on knowing receipt, which has in any event, it genesis in the claims based on breach of fiduciary duty.¹⁰ The central actor, Mr Cameron, was effectively both vendor and purchaser, and must have known that his actions breached his fiduciary duty to Emerald Shore.¹¹ The case against ESL2011 as the vehicle of this breach for

_{knowing receipt is incontrovertible.}

⁶ _{Regal Hastings v Gulliver [1967] 2 AC 134 (HL).}

⁷ _{Regal Hastings, above n 6, at 158.}

⁸ _{At 159.}

⁹ _{The applicant does not seek to recover the sums paid to Wroxton and Curzon.}

¹⁰ See the elements of knowing receipt as set out in Equiticorp Industries Group (In Statutory

_{Management) v R [1998] 2 NZLR 481 (HC) at 541.}

¹¹ See the discussion of the requirements of the necessary “knowledge” for knowing receipt liability in Westpac v Savin [1985] 2 NZLR 41 (CA), and further in Worldtel v Kim HC Auckland CIV-2009-404-001158, 30 September 2011, per Courtney J.

Remedy

[38] I do not propose to repeat Mr King’s careful and astute submissions on remedy as they will largely feature in my reasons.

[39] Emerald Shores’ claim to an equitable proprietary interest in the properties or their traceable proceeds is uncontroversial. It is clear that a director who breaches his fiduciary duty must remedy the breach,¹² and the interest of any person who acquires company property with knowledge of the breach is subordinated to the interests of the company.¹³

[40] Turning to the specific claims in this case: the claim to recovery of the remaining property still in the hands of ESL2011 is an exemplar of a vindicatory claim – Emerald Shore’s pre-existing proprietary interest in the properties persisted on transfer to ESL2011, as ESL2011 acquired that property with knowledge of the breach of duty which had occurred. A constructive trust will simply vindicate Emerald Shore’s equitable proprietary interest in that individual lot.¹⁴

[41] Second, ESL2011 obtained the proceeds of the sale of the lots via a known breach of fiduciary duty and, applying the reasoning in Foskett v McKeown, must be liable to the Emerald Shore for them, either as a personal remedy together with an equitable lien or via the imposition of an institutional constructive trust.¹⁵ The underlying premise is that neither Mr Cameron nor ESL2011 (as Mr Cameron’s alter ego) is permitted to profit from his misappropriation of company assets; and ESL2011 could not acquire better title to them than Mr Cameron. Provided that the proceeds of the sale of the properties are traceable to the properties which Emerald

Shores had a proprietary interest in, they are amenable to an institutional constructive trust. In this case there is no suggestion of innocent contributions to the proceeds of sale or any mixing of funds¹⁶ so that the proprietary remedy is

_unfettered.¹⁷

¹² Greg Kelly and Chris Kelly Law of Trusts and Trustees (7^th ed, LexisNexis, Wellington, 2013) at

_[25.60].

¹³ _{See Foskett v McKeown [2000] UKHL 29; [2000] 3 All ER 97; [2001] 1 AC 102 (HL) at 132.}

¹⁴ _{Foskett v McKeown, above n 13, at 129.}

¹⁵ _{Foskett v McKeown, above n 13, at 131.}

¹⁶ _{The proceeds were set aside and placed in a separate bank account – see [21] above.}

¹⁷ In applying the framework employed in Foskett I should not be seen to adopt without

[42] Accordingly, given the foregoing, I make the following orders:

(a) An order declaring that Mr Cameron breached his fiduciary duties to

Emerald Shores;

(b) An order declaring that Mr Cameron committed a breach of trust against Emerald Shores.

(c) An order declaring that Emerald Shores has an equitable proprietary interest in the Properties and the proceeds of them except for those proceeds used to repay Wroxton and Curzon.

(d) A declaration that ESL2011 holds on constructive trust for Emerald

Shores:

(i) the remaining Property in ESL2011’s possession, Lot 67; and

(ii) the proceeds of Properties sold, which ELS2011 still holds in its possession, including any interest earned.

(e) Orders requiring ESL2011 to:

(i) transfer to Emerald Shores the legal and equitable interest in

_{Lot 67,}

qualification the thesis that the constructive trust is simply vindicating a persistent equitable interest rather than a restitutionary remedy. But the facts of the case are squarely within the principles laid down by Foskett and there is no need to seek to explain the remedy on an alternative restitutionary basis (for example a restitutionary remedy in rem to reverse an unjust enrichment or a wrong). I also acknowledge the views of Jessica Palmer, in her paper “Attempting Clarification of Constructive Trusts” [2010] 24 NZULR 113 – 135 in articulating an argument for the underlying basis of a institutional constructive trust and its distinction, and similarities, to a remedial constructive trust. Ms Palmer’s explanation for the institutional constructive trust provided considerable assistance, but I am not yet persuaded that the deemed “intention” of the transferor explains the creation of equitable title by constructive trust in a context where, quite plainly, the miscreant director or trustee dissipates trust / company property for personal gain.

(ii) transfer to Emerald Shores the proceeds of the Properties sold, including any interest earned, except for those proceeds used to repay Wroxton and Curzon; and

(f) An order appointing Hamish Roderick Craig Murray of Sharp Tudhope Lawyers (or such other person as the Court thinks fit) as attorney for ELS2011 to take such actions and execute such documents on ESL2011’s behalf as are necessary to give effect to the orders in (e).¹⁸

_{(g) Costs on a category 2B basis.}

¹⁸ The Official Assignee in Mr Cameron’s bankruptcy abides the decision of the Court. Given that is the case I see no problem with the relief sought in this respect (i.e. without further recourse to the Official Assignee).