Court of Appeal
Supreme Court
New South Wales
- Amendment notes
Medium Neutral Citation: David & Ros Carr Holdings Pty Ltd v Ritossa [2025] NSWCA 108 Hearing dates: 10, 11 April 2025 Decision date: 23 May 2025 Before: Leeming JA at [1];
Stern JA at [258];
Griffiths AJA at [259]Decision: 1. Appeal dismissed.
2. Appellants to pay the respondents’ costs.
Catchwords: EQUITY – trusts and trustees – two couples established unit trust for purpose of making property investments – equal division of units – equal board representation on corporate trustee – equal shareholdings in trustee – no provision to resolve deadlocks – trust deed contained clause based on s 3A(3B) of Land Tax Management Act 1956 (NSW) deeming it to be a fixed trust – clause provided that unit holders may require the trustee to wind up the trust and distribute the trust property – whether individual unit holder entitled to wind up trust
PRECEDENT – appellate decision on similar clause in trust deed, in unit trust where one person held all units, construed to entitled unit holder to wind up trust – whether earlier decision authority for clause authorising one of a number of unit holders individually to wind up trust – decisions only authority for what was decided – Sayden Pty Ltd v Chief Commissioner of State Revenue (2013) 83 NSWLR 700; [2013] NSWCA 111 distinguished
CORPORATIONS – members’ rights and remedies – oppression – construction and background to Corporations Act 2001 (Cth), s 232 and 233 – whether applicable to members of trustee companies – whether member’s capacity as person with indirect interest in trust assets relevant – trustee conducted agricultural business – whether ongoing disputes concerning management of business amounted to oppression – whether deadlock as to whether trust should be wound up amounted to oppression
RECEIVERS – so-called “principle in Ebrahimi v Westbourne Galleries Ltd [1973] AC 360” relied on to appoint receiver to wind up trust – nature of principle – whether principle of equity or statutory construction – nature of receivership – whether remedy interlocutory or final – differences between companies and trusts – court’s function to preserve trusts – equitable doctrines directed to preservation of trusts
Legislation Cited: Companies Act 1862 (UK), s 79
Companies Act 1948 (UK), s 222
Conveyancing Act 1919 (NSW), ss 26, 66G, 181
Corporations Act 2001 (Cth), ss 6, 53, 58AA, 201K, 232, 233, 234, 461, 601GA, 601ND
Corporations Law 1990 (Cth), ss 246AA, 260
Income Tax Assessment Act 1936 (Cth), ss 95A, 95B, 97
Income Tax Assessment Act 1997 (Cth)
Joint Stock Companies Winding Up Act 1848 (UK)
Judicature Act 1873 (UK), s 25
Land Tax Act 1956 (NSW)
Land Tax Management Act 1956 (NSW), s 3A
Partnership Act 1890 (UK)
Partnership Act 1892 (NSW), s 35(f)
Supreme Court Act 1970 (NSW), ss 23, 66, 67
Cases Cited: Accurate Financial Consultants Pty Ltd v Koko-Black Pty Ltd [2008] VSCA 86
Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148…
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- Case
- [2025] NSWCA 108
- Decision Date
CaseChat Overview and Summary
The court was required to determine several legal issues. Firstly, it had to interpret the trust deed to ascertain whether the clause allowing unit holders to require the winding up of the trust conferred an individual right on each unit holder, or if it required a collective decision. Secondly, the court considered whether the principles established in *Sayden Pty Ltd v Chief Commissioner of State Revenue* were applicable, given that *Sayden* involved a unit trust where one person held all the units, unlike the present case with multiple unit holders. Thirdly, the court examined the applicability of the oppression provisions of the *Corporations Act 2001* (Cth) to members of the trustee company, and whether the ongoing disputes and deadlock regarding the trust's management constituted oppression. Finally, the court considered whether the principle in *Ebrahimi v Westbourne Galleries Ltd* could be invoked to appoint a receiver to wind up the trust.
The court reasoned that the clause in the trust deed, when read in its entirety and in light of the *Sayden* decision, did not grant an individual unit holder the unilateral right to wind up the trust. While *Sayden* established that a unit holder could require winding up in a single-holder scenario, this did not translate to a similar right for one of several unit holders. The court found that the oppression provisions of the *Corporations Act* were not applicable to the members of the trustee company in this context, as the disputes related to the management of the trust rather than the affairs of the company itself. Furthermore, the *Ebrahimi* principle, which applies to quasi-partnerships in companies, was deemed inappropriate for trusts, whose equitable nature is directed towards preservation.
The appeal was dismissed, and the appellants were ordered to pay the respondents' costs.
Orders
Orders of the court
1. Appeal dismissed.
2. Appellants to pay the respondents’ costs.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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