| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
S CI 2008 05515
BETWEEN:
| ROBERT DEUTSCH & ORS | Plaintiffs |
| - and - | |
| ERWIN DEUTSCH & ORS | Defendants |
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JUDGE: | HARGRAVE J | |
WHERE HELD: | Melbourne | |
DATES OF HEARING: | 14, 26-30 March, 2, 4, 17 April, 9, 24, 30 May 2012 | |
DATE OF JUDGMENT: | 1 June 2012 | |
CASE MAY BE CITED AS: | Robert Deutsch & Ors v Erwin Deutsch & Ors | |
MEDIUM NEUTRAL CITATION: | [2012] VSC 227 | |
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TRUSTS – Derivative claims by potential beneficiaries against defaulting fiduciary – Whether standing to sue – Whether new trustees should be appointed to deadlocked corporate trustees.
FRUSTRATION – Whether appointment of receivers frustrated terms of settlement.
ACCORD AND SATISFACTION – Accord and conditional satisfaction – Plaintiffs elected to treat terms of settlement as at an end and to sue on the compromise – Osborn v McDermott [1998] 3 VR 1, 10-11 applied.
RELEASE – Scope of release using general words – Whether claims in proceeding within contemplation of parties – Grant v John Grant & Sons Pty Ltd (1954) 91 CLR 112 applied.
EQUITY – Defaulting fiduciary – Whether allowance should be made for fiduciary’s work in managing trust business.
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APPEARANCES: | Counsel | Solicitors |
| For Plaintiffs/Defendants by counterclaim | Mr S Anderson SC with Mr J Slattery | Holding Redlich |
| For the First Defendant | Mr E Deutsch in person | |
| For the Second to Eighth Defendants | No appearance | |
| For the Ninth to Sixteenth Defendants/Plaintiffs by counterclaim | Mr G Efron, Solicitor | Efron & Associates |
TABLE OF CONTENTS
Summary of facts and issues in the main proceeding................................................................. 3
Do the plaintiffs have standing to sue on behalf of the trusts?.............................................. 15
Did Erwin misappropriate any trust funds?............................................................................... 17
Was time of the essence of Erwin’s obligations under the terms of settlement? Was it an implied term of the terms of settlement that Erwin would perform his obligation within a reasonable time? 18
Did Erwin breach the terms of settlement?................................................................................. 20
Were the terms of settlement frustrated before any breach by Erwin?.................................. 27
Did Erwin’s breaches constitute a repudiation of the terms of settlement? If so, has that repudiation been accepted?.................................................................................................................................. 32
If the repudiation was accepted, what claims may be pursued?............................................. 40
If the repudiation was not accepted, what claims may be pursued?...................................... 40
Did Robert suffer recoverable loss?.............................................................................................. 50
Did the St Kilda Road trust and/or the Cooee Trust suffer recoverable loss?...................... 51
Did the property trusts suffer recoverable loss?......................................................................... 51
What management role did Erwin play in the Cooee business at relevant times?.............. 52
Is Erwin entitled to any adjustment to compensate him for his management role?........... 60
What monetary relief should be ordered in the main proceeding?........................................ 66
Should a new trustee be appointed to some or all of the trusts?............................................ 67
Conclusion and orders.................................................................................................................... 67
HIS HONOUR:
Robert and Erwin Deutsch are brothers. Robert is the older brother. They and their families both observe and practice the Jewish religion in an orthodox manner. For approximately 30 years, they jointly…
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- AGLC
- Deutsch v Deutsch [2012] VSC 227
- Case
- [2012] VSC 227
- Decision Date
CaseChat Overview and Summary
The court found that the plaintiffs did have standing to sue, as they were potential beneficiaries of the trust. The court also determined that the appointment of receivers did not frustrate the terms of the settlement. Regarding the accord and satisfaction, the court held that the plaintiffs had elected to treat the terms of the settlement as at an end and to sue on the compromise, in line with the principles established in Osborn v McDermott. The scope of the release was considered, and the court found that the claims in the proceeding were within the contemplation of the parties, applying the principles set out in Grant v John Grant & Sons Pty Ltd.
The court ruled in favour of the plaintiffs, allowing them to challenge the settlement terms and seek the appointment of new trustees. The final orders of the court included directions for the appointment of new trustees and the continuation of the proceedings to address the claims made by the plaintiffs against the defaulting fiduciaries.
Orders
Orders of the court
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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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