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Application by Sonya Sarkis

Application by Sonya Sarkis

Case [2015] NSWSC 1369 28 September 2015

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Application by Sonya Sarkis [2015] NSWSC 1369
Hearing dates: 15 June 2015
Date of orders: 28 September 2015
Decision date: 28 September 2015
Jurisdiction: Equity
Before: Slattery J
Decision:
See paragraph [93].

Catchwords: TRUSTS - trustee seeks judicial advice under Trustee Act 1925, s 63 – testamentary trust – trust properties owned jointly by the trust and by a beneficiary of the trust – beneficiary seeks the appointment of trustees for sale under Conveyancing Act, s 66G for the sale of the jointly owned properties – trustee seeks judicial advice as to whether she would be justified in defending the proceedings and on what terms.
Legislation Cited: Civil Procedure Act 2005 (NSW), s 86(2)
Conveyancing Act 1919, ss 66G, 66I
Trustee Act 1925, s 63
Uniform Civil Procedure Rules 2005, r 55
Cases Cited: Bovaird v Frost [2009] NSWSC 917
Coore v Coore [2013] QSC 196
El Sayed v El Hawach [2015] NSWCA 26
Forgeard v Shanaham (1994) 35 NSWLR 206
Frost and Fallon [2011] NSWSC 591
Loblay v Loblay [2013] NSWSC 1195
Macedonian Orthodox Community Church Saint Petka Inc v His Eminence Petka, the Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66
Penny Nominees Pty Ltd v Fountain (No. 3) (1990) 5 BPR 11,284
Re Australian Pipeline Ltd (2006) 60 ACSR 625
Re Dracup [1894] 1 Ch 59
Re Estate of Heywood [2010] SASC 247
Re Fettell (1952) 52 SR (NSW) 221
Tory v Tory [2007] NSWSC 1078
Wooster v Morris [2013] VSC 594
Category: Consequential orders (other than Costs)
Parties: Plaintiff: Sonya Sarkis
Trust beneficiary: Sam Bkassini
Representation:
Counsel:
Plaintiff: C.D. Wood
Solicitors:
Plaintiff: Peter E. Baltins, Willis & Bowring

File Number(s): 2015/91199
Publication restriction: No

Judgment

The plaintiff, Sonya Sarkis, is a solicitor. She is also the sole trustee of a testamentary trust (“the Trust”) formed under the will of her late mother, Saoud Bkassini, and a beneficiary of the Trust.
Sonya Sarkis is one of the three children of William and Saoud Bkassini. Her mother died on 18 May 2005 and was survived by her husband William. Sonya Sarkis has two brothers, Assid Bkassini and Sam Bkassini.
Disputes have arisen among family members about the sale of two Trust properties that adjoin one another. Each of these properties is owned as tenants-in-common in equal shares by Sonya Sarkis as trustee of the Trust and by William. Sonya Sarkis now seeks the Court’s advice, opinion and directions pursuant to Trustee Act 1925, s 63 or alternatively Uniform Civil Procedure Rules 2005 (“UCPR”), r 55 upon questions relating to their sale.
All the parties to these proceedings come from the one family. So without intending any disrespect to any family member, the Court will use their first names in these reasons, just as the family members did in the proceedings.
Saoud made a will on 21 April 2005 appointing Sonya as her executor and trustee. After giving…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Application by Sonya Sarkis

Details

AGLC: Application by Sonya Sarkis [2015] NSWSC 1369
Case: [2015] NSWSC 1369
Decision Date: 28 September 2015

CaseChat Overview and Summary

Sonya Sarkis applied for judicial advice under the Trustee Act 1925, section 63, seeking guidance on whether she could defend proceedings brought by a beneficiary of a testamentary trust. The trust owns jointly held properties with the beneficiary, and the beneficiary is seeking the appointment of trustees for the sale of these properties under the Conveyancing Act 1919, section 66G. The primary issue before the court was whether the trustee was justified in defending the proceedings and, if so, on what terms.

The court considered whether the trustee's actions in potentially defending the proceedings were within the scope of her powers and duties. It also examined the circumstances under which the trustee might be justified in defending the proceedings and the implications of such a defence on the trust's administration and the interests of the beneficiaries.

The court concluded that the trustee could be justified in defending the proceedings under certain conditions. It found that the trustee's decision to seek judicial advice was appropriate and that she could defend the proceedings if she acted in the best interests of the trust and its beneficiaries. The court outlined specific terms and conditions under which the trustee could proceed with the defence, ensuring that the interests of all beneficiaries were protected and that the trust was administered properly.

The court ordered that the trustee could defend the proceedings brought by the beneficiary for the sale of jointly owned properties, provided she adhered to the terms and conditions set out in the judgment. This included ensuring that any defence was in the best interests of the trust and its beneficiaries, and that the trustee's actions were transparent and in compliance with her duties and powers under the Trustee Act 1925.

Orders