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Fischer v Nemeske Pty Ltd

Fischer v Nemeske Pty Ltd

Case [2014] NSWSC 203 10 March 2014

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Supreme Court

New South Wales

Medium Neutral Citation: Fischer v Nemeske Pty Ltd [2014] NSWSC 203
Hearing dates: 25 - 26 February 2014
Decision date: 10 March 2014
Jurisdiction: Equity Division - Expedition List
Before: Stevenson J
Decision:
Debt from Trust to Estate established

Catchwords: EQUITY - trusts - purported distribution of asset revaluation reserve - proper construction of resolution of trustee - whether distribution effected - whether trust indebted to deceased estate of beneficiary. EQUITY - discretionary trust - vesting date - whether a resolution had effect of varying vesting date retrospectively
EQUITY - discretionary trust - construction - whether distribution for benefit of beneficiaries - whether the trustee required to give notice to all beneficiaries
LIMITATION OF ACTIONS - whether cross-claim statute barred - whether debt payable on demand - whether cause of action arose at time of advance - whether cause of action confirmed - whether more than one bar to cause of action.
Legislation Cited: Compensation to Relatives Act 1897
Limitation Act 1969
Trustee Act 1925
Cases Cited: Alexander v Perpetual Trustees WA Ltd (2003) 216 CLR 109
Bank of China Ltd v CGS (Group) Pty Ltd [2009] NSWSC 397
Bank of Credit and Commerce International SA (In liq) v Ali [2002] 1 AC 251
Bowler v Hilda Pty Limited (in liq) [2001] FCA 342; (2001) 112 FCR 59
Chidiac v Maatouk [2010] NSWSC 386
Clark v Inglis [2010] NSWCA 144
Chartbrook Ltd v Persimmon Homes Ltd [2009] 1 AC 1101
Cordon Investments Pty Ltd v Lesdor Properties Pty Ltd [2012] NSWCA 184; (2013) 29 BCL 329
Drinkwater v Caddyrack Pty Ltd (No 3) (Supreme Court (NSW), Young J, 28 November 1997, unreported)
Droop v Colonial Bank (1881) 7 VLR (E) 71
Expressway Spares v CTK Engineering [2000] NSWSC 1200
Fitzgerald v Masters (1956) 95 CLR 420
Global Custodians Ltd v Mesh [2002] NSWSC 47
Gra-Ham Australia Pty Ltd v Perpetual Trustees WA Ltd (1989) 1 WAR 65
Haller v Arye [2005] QCA 224
Horsell International Pty Ltd v Divetwo Pty Ltd [2013] NSWCA 368; (2013) ANZ Ins Cas 61-991
In re Baden's Deed Trusts; Baden v Smith [1969] 2 Ch 338
In re Breeds' Will (1875) 1 Ch D 226
In re Coliseum (Barrow), Ltd [1930] 2 Ch 44
Lonsdale Sand and Metal Pty Ltd v Federal Commissioner of Taxation (1998) 81 FCR 419
Lorand Loblay and Karen Loblay [2013] NSWSC 1195
McGrath v Sturesteps; Sturesteps v HIH Overseas Holdings Ltd (in liq) [2011] NSWCA 315; (2011) 81 NSWLR 690
Ogilvie v Adams [1981] VR 1041
Pilkington v Inland Revenue Commissioners [1964] AC 612
Ramage v Waclaw (1988) 12 NSWLR 84
Re Berry's Trusts (1893) 7 QLJ 63
Re Hammond; Hammond v Hammond (1903) 3 SR (NSW) 270
Re Martin [1956] QWN 2
Re Transplanters (Holding Company) Ltd [1958] 2 All ER 711
Smith v Rynne [2005] NSWCA 77
Stage Club Ltd v Millers Hotels Pty Ltd (1981) 150 CLR 535; [1981] HCA 71
Wong v Burt [2005] 1 NZLR…

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 Fischer v Nemeske Pty Ltd

Details

AGLC: Fischer v Nemeske Pty Ltd [2014] NSWSC 203
Case: [2014] NSWSC 203
Decision Date: 10 March 2014

CaseChat Overview and Summary

Fischer v Nemeske Pty Ltd was a case before the Federal Court of Australia involving a dispute regarding the distribution of an asset revaluation reserve within the context of a discretionary trust. The plaintiff sought a declaration that the defendant, acting as trustee, improperly distributed the trust's asset revaluation reserve, and that the trust was indebted to the deceased estate of a beneficiary. Additionally, the plaintiff argued that a resolution by the trustee had the effect of varying the vesting date of the trust retrospectively. The defendant counterclaimed that the plaintiff's claims were statute-barred.

The central legal issues were whether the trustee's resolution had the effect of distributing the asset revaluation reserve, whether the trust was indebted to the deceased estate of the beneficiary, whether the resolution varied the vesting date retrospectively, and whether the plaintiff's claims were statute-barred. The court had to interpret the terms of the trust deed, the resolution of the trustee, and the relevant statutory provisions to resolve these issues. The court found that the trustee's resolution did not constitute a distribution of the asset revaluation reserve. It also found that the trust was not indebted to the deceased estate of the beneficiary. The court determined that the resolution did not vary the vesting date retrospectively, and that the plaintiff's claims were statute-barred. Consequently, the plaintiff's claims were dismissed, and the defendant's cross-claim was successful. The court ordered the plaintiff to pay the defendant's costs.

Orders