Crossman v PILT Nominees - [2009] NSWSC 393

CITATION: Crossman v PILT Nominees [2009] NSWSC 393
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 21 and 23 April 2009

JUDGMENT DATE :
23 April 2009

JURISDICTION: Equity

JUDGMENT OF: White J

EX TEMPORE JUDGMENT DATE: 23 April 2009

DECISION: Refer to paras 73 and 74 of judgment.

CATCHWORDS: EQUITY - trusts and trustees - proceedings between trustees and beneficiaries or third parties – beneficiary of sub-trust seeks appointment of receiver to property of trustee – defendants propose interim appointment of new independent trustees – balance of convenience favours this course – notice of motion stood over for arrangements to be made - EQUITY - equitable remedies – injunctions – freezing orders sought against the first, second and third – undertakings made by first, second and third defendants to the court – undertakings offered from first and second defendants provide the same protection as freezing orders sought – restraining order made against third defendant - EQUITY - equitable remedies – injunctions – plaintiff seeks order requiring affidavits of discovery –narrower order made subject to the third defendant being entitled to object to making an affidavit on the ground of privilege against self-incrimination or self-exposure to a penalty - EQUITY - equitable remedies – injunctions – mandatory injunction sought that second defendant repay money to first defendant – plaintiff does not point to any loss he will suffer if the relief is not made until final determination – balance of convenience does not favour granting the orders sought

LEGISLATION CITED: Trustee Act 1925 (NSW)

CATEGORY: Procedural and other rulings

CASES CITED: Crossman v PILT Nominees Pty Ltd [2008] NSWSC 557
Chow Yoong Hong v Choong Fah Rubber Manufactory [1962] AC 209
KD Morris & Sons Pty Ltd (in liq) v Bank of Queensland Ltd (1980) 146 CLR 165
Brick & Pipe Industries Ltd v Occidental Life Nominees Pty Ltd and Ors (1990) 3 ACSR 649
Ex Parte D (1995) 17 ACSR 52
Attorney-General v Punch Ltd [2003] 1 AC 1046

TEXTS CITED: R P Meagher, J D Heydon & M J Leeming, Meagher, Gummow & Lehane’s Equities: Doctrines & Remedies 4th ed 2002

PARTIES: Phillip Michael Crossman
v
PILT Nominees Ltd & 3 Ors

FILE NUMBER(S): SC 2847/08

COUNSEL: Plaintiff: R J H Darke SC with J B Spinak
Defendants: A J Sullivan QC with D K L Raphael and C H Withers
Mr Londish: S Burchett

SOLICITORS: Plaintiff: Allens Arthur Robinson
Defendants: Johnson Winter & Slattery

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
DUTY JUDGE’S LIST

WHITE J

Thursday, 23 April 2009

2847/08 Phillip Michael Crossman v PILT Nominees Ltd & 3 Ors

JUDGMENT

1 HIS HONOUR: The plaintiff seeks the following orders: First, he seeks the appointment of a receiver and manager to the property of the first defendant, PILT Nominees Pty Ltd as trustee of the Prime Index Lease Trust. Next he seeks freezing orders to restrain PILT Nominees from dealing…

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 Crossman v PILT Nominees

Details

AGLC: Crossman v PILT Nominees [2009] NSWSC 393
Case: [2009] NSWSC 393
Decision Date: 23 April 2009

CaseChat Overview and Summary

In Crossman v PILT Nominees, the parties involved were the plaintiff, Crossman, and several defendants, including PILT Nominees. The plaintiff, a beneficiary of a sub-trust, sought various equitable remedies against the defendants, including the appointment of a receiver to property held by the trustees, interim appointment of new independent trustees, and injunctions. The case was heard in the Supreme Court of Victoria.

The primary legal issues addressed by the court were whether to appoint a receiver, whether to allow the interim appointment of new independent trustees, whether to grant the injunctions and freezing orders sought by the plaintiff, and whether to compel the production of affidavits of discovery. The court had to weigh the balance of convenience and the protection offered by undertakings against the potential prejudice to the defendants.

The court decided that the balance of convenience favoured the interim appointment of new independent trustees, as it would likely better protect the interests of all parties involved. Consequently, the notice of motion for the appointment of a receiver was stood over pending arrangements for the new trustees. Regarding the injunctions and freezing orders, the court determined that the undertakings provided by the first and second defendants were sufficient to protect the plaintiff's interests. A restraining order was made against the third defendant due to the lack of equivalent undertakings. For the affidavits of discovery, the court issued a narrower order, subject to the third defendant's right to object on grounds of privilege against self-incrimination or self-exposure to a penalty. The court also declined to grant a mandatory injunction for the repayment of money, finding that the plaintiff had not demonstrated any immediate loss if the relief was postponed until the final determination.

The final orders included the standing over of the notice of motion for the appointment of a receiver, the interim appointment of new independent trustees, the issuance of a restraining order against the third defendant, and the narrower order for affidavits of discovery. The court's decision was based on the balance of convenience and the protection offered by the undertakings.

Orders