Built NSW Pty Limited v Nique Enterprises Pty Limited

Built NSW Pty Limited filed an application for an interlocutory order in the Supreme Court of New South Wales, seeking preliminary discovery from Nique Enterprises Pty Limited. The dispute involved identifying the identity of the trustee of the Nique Family Trust and determining whether trust creditors were subrogated to the old trustee's right of indemnity against the trust assets. The court was tasked with deciding whether Built NSW was entitled to discover certain documents from Nique Enterprises to ascertain the identity of the new trustee and whether the trust creditors had a right of indemnity against the trust assets.

The central legal issue was whether Built NSW could obtain preliminary discovery from Nique Enterprises to determine the identity of the new trustee. Additionally, the court had to consider whether the trust creditors were subrogated to the old trustee's right of indemnity against the trust assets. Built NSW argued that it was necessary to discover the identity of the trustee to pursue its claims against the trust, while Nique Enterprises contended that such discovery was not justified at this stage of the proceedings.

The court held that Built NSW was entitled to seek preliminary discovery from Nique Enterprises to ascertain the identity of the new trustee. The court reasoned that the identity of the trustee was crucial for Built NSW to determine whether it had a cause of action against the trust or the trustee. Furthermore, the court found that the trust creditors were not subrogated to the old trustee's right of indemnity against the trust assets. The court emphasised that the right of indemnity was personal to the trustee and did not extend to the trust creditors. Consequently, Built NSW was granted leave to seek the discovery of documents from Nique Enterprises to identify the new trustee.

The court made an order granting Built NSW leave to apply for preliminary discovery from Nique Enterprises to ascertain the identity of the new trustee of the Nique Family Trust. The court also ruled that the trust creditors were not subrogated to the old trustee's right of indemnity against the trust assets.